So, You Think You’re an Expert on Bicycles? Think Again
With the rise in popularity of bicycling, it is no surprise that there has been a corresponding rise in bicycle accidents and injuries in the last few years. Likewise, as bicycle manufactures have introduced new bicycle designs and new frame materials, such as carbon fiber, titanium and scandium/aluminum, there has been an increase in bicycle-related product liability actions. As a result, there have been a number of recent federal court decisions involving expert testimony in bicycle product liability cases. These cases suggest that unless you have retained an expert that has tested the bicycle in question or is a bicycle industry insider, you probably do not want to litigate your bicycle accident case in federal court.
Generally speaking, there are three circumstances under which expert testimony may be warranted in bicycle product liability cases:
- First, a plaintiff will need an expert to testify that the bicycle or one of its components was unreasonably dangerous for its intended purpose or was otherwise defective and was a cause of the accident
- Second, litigants may want to use someone with specialized knowledge in the bicycle industry to educate the jury about the history of bicycle manufacturing and/or design
- Third, parties may want an expert witness to testify about the performance characteristics of the bicycle in question or the rider’s operation of the bicycle
However, parties litigating a bicycle product liability action in federal court will have a difficult time introducing such testimony unless they have hired a properly qualified expert witness.
Unlike Wisconsin’s state court rules, the Federal Rules of Evidence require judges to perform a “gatekeeping” function to ensure that proffered expert testimony satisfies the requirements of Fed. R. Evid. 702. See generally, Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Rule 702 requires that an expert witness be qualified by “knowledge, skill, experience, training, or education.” Further, expert opinion testimony must:
- Be supported by sufficient facts and data
- Result from the use of reliable principles and methods, and
- Result from a reliable application of those principles to the facts of the case
In determining whether these standards have been met, federal courts apply the test set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-95 (1993), which requires an analysis of:
- Whether the expert’s methods have been tested;
- Whether the methodology employed has been peer-reviewed;
- The known error rate for the technique employed;
- Whether there are any standards controlling how the methodology is applied; and
- Whether the expert’s techniques and methodology have gain general acceptance in the scientific community.
A number of recent federal court decisions indicate that in a bicycle product liability case testimony by a well-credentialed engineer or metallurgist will most likely not satisfy the Daubert test, unless the expert has tested the bicycle in question or has special knowledge about the design and/or performance of bicycle components. For instance, in Borel v. Trek Bicycle Corp., No. 09-cv-01312, slip op., Prod. Liab. Rep. (CCH) P 18,441, 2010 WL 2682118 (D. Colo. July 1, 2010), the court excluded the plaintiff’s proffered expert testimony about potential alternative bicycle frame design. Borel involved a bicyclist who was seriously injured after his frame failed while riding on a dirt path. The plaintiff’s engineering expert examined the frame, and concluded that the frame failed at the junction of the headtube, toptube and downtube due to metal fatigue. He also opined in his deposition that the frame would not have failed had Trek used an alternate design that separated the toptube and downtube at different junctions on the headtube, or if Trek had used thicker or reinforced tubing.
Trek moved to limit the expert’s testimony to the topic of frame failure and exclude his opinions on frame design. The plaintiff argued that his expert’s opinion was reliable because of his “40 years of personal experience in the fields of mechanical engineering and bioengineering as well as personal experience and knowledge of metallurgy[.]” Id. at *2. The district court disagreed, ruling that while the expert’s credentials “allow[ed] him to provide educated opinions, this is not nearly enough to rise to the level required by Fed. R. Evid. 702 and Daubert.” Id. According to the court, the expert’s alternative design theories failed to meet any of the five Daubert factors:
These theories were not generated via any reproducible or peer reviewed technique. None of these theories were formally analyzed, tested, or modeled . . . . Dr. Jacobson admitted there was no “analysis on . . . an exemplar of this bike or on this particular bike. Further, there is no indication that doing testing, calculations, or modeling was an impossible undertaking.
Instead, the theories are wholly the product of Dr. Jacobson’s “experience.” It may be true that his design suggestions would have prevented the frame failure in this case. But it is equally true that these design theories could lead to the opposite result, since there is no empirical evidence to show otherwise.
As such, there is no way to guarantee the reliability of these alternative design theories . . . .
Id. at * 3. Similarly, in Lynch v. Trek Bicycle Corp., No. 09-cv-3819, Prod. Liab. Rep. (CCH) P 18,419, 2010 WL 1647458 (2d Cir. Apr. 22, 2010) (Not selected for publication in Federal Reporter), the court granted Trek’s motion in limine to exclude the plaintiff’s expert from testifying as to what caused the carbon fork on the plaintiff’s road bike to fail. The plaintiff’s expert would have testified that a “wrinkle” in the carbon fibers of the fork could have caused it to fail. The district concluded that the plaintiff’s expert did not possess the necessary qualifications to provide such testimony and that his proffered testimony was insufficient to establish causation. Id. at *2. On Appeal, the Second Circuit Court of Appeals upheld the district court’s ruling, reasoning:
[W]e agree with the district court that Weir lacks the qualifications to testify as to whether the purported defect—a “wrinkle” in the bicycle’s left fork—caused Lynch’s injury. While Weir testified that he has some experience working with carbon composite material, he admitted that his area of expertise is primarily in coatings related to the manufacture and design of aircraft. Importantly, moreover, Weir repeatedly declined to offer any quantitative or scientifically-based testimony regarding his theory of how both forks failed. Instead, without performing any testing, Weir testified to how the failure “could have happened” . . . .
Id. at 2.
Both Borel and Lynch stand for the proposition that a witness’ knowledge of general engineering principles or metallurgy, even if extensive, is not sufficient to qualify the person as an expert witness in a bicycle product liability case unless the witness has tested the bicycle and/or has specialized knowledge about bicycle design and frame building. On the other hand, previous cases have established that an expert need not be an industry “insider” in order to provide expert opinion testimony in a bicycle products liability case, so long as the expert tested the defective product and based his opinion on applying established scientific principles to the result of that testing.
For instance, in Derienzo v. Trek Bicycle Corp., 376 F. Supp. 2d 537 (S.D.N.Y. 2005), the plaintiff’s expert, a world-renowned metallurgist, was allowed to testify that defective welds caused the plaintiff’s aluminum mountain bike frame to fail even though, according to the defense, the expert did not “have ‘the faintest idea’ about the mountain biking industry and has never analyzed a bicycle frame failure.” Id. at 556. The Court reasoned that the expert’s testimony met the Daubert standard because the expert had performed extensive observational and destructive testing on the plaintiff’s bike frame and applied scientific principles to the results of that testing to render a scientific opinion as to the cause of the bike frame’s failure. Id. at 559 (“Paxton’s described procedures tend to indicate to the Court that he carried out a thorough and scientific analysis of the frame, and that these tests formed the basis for his conclusion that fatigue cracks caused by excess weld material were a substantial factor in causing the frame to fail.”) The court further concluded that the expert was not disqualified even though:
- His specialty was analyzing steel;
- He had never before conducted an analysis of aluminum welds or aluminum fatigue cracks; and
- He changed his opinions multiple times during the litigation.
Id. at 556-59. According to the court, these facts affected the weight of the expert’s testimony, not its admissibility. Id. See also Sarafolean v. Accomplice New York, 74 A.D.3d 1310, 904 N.Y.S.2d 223 (N.Y. App. Div. 2010) (experts allowed to testify that brakes on bicycle were functioning at time of accident based on their examination of the bicycle following the accident).
Conversley, while industry experience alone may qualify a witness to provide expert testimony to teach the jury about relevant aspects of the bicycling industry, it does not qualify a witness to provide an opinion on causation. See Prothro v. Wal-Mart Stores, Inc., No. 04-cv-868, 2006 WL 5086578 at *3 (W.D. La. Jan. 27, 2006) (Not reported in F. Supp. 2d) (bicycle shop employee may be qualified to testify as to proper procedure to assemble bicycle). Cf., Alexander v. Sports Auth., Inc., No. 07-0479, 2007 WL 1745328 at * 7 (D. Mass. June 14, 2007) (Not reported in F. Supp. 2d) (engineering expert that examined the plaintiff’s bicycle allowed to testify as to performance characteristics of bicycle brakes but not allowed to testify as to necessity of retail industry warnings).
In Derienzo, the plaintiff also offered the testimony of a bicycle enthusiast with a bachelor’s degree in electrical engineering to inform the jury about:
- The bicycle industry’s historic use of certain metals as frame-building materials
- Historical methods that manufactures used to “strengthen” bicycle frames
- The intended use of certain bicycles, and
- Whether certain uses should have been foreseen by manufacturers
376 F. Supp. 2d at 562-66. While this expert had sparse educational qualifications, he had extensive experience in the bicycle industry that included serving on the boards of various prominent cycling advocacy organizations, serving as an “Effective Cycling Instructor,” and drafting policies and proposed bicycle safety legislation. He also co-authored several books on bicycle mechanics, conducted studies concerning bicycle safety, judged bicycle design competitions, and helped draft a national curriculum for bicycle safety for use by police, among many other activities. Id. at 562-63. Based on his background and experience, the court concluded that the witness was “qualified as an expert in the areas of the history of cycling, cycling trends and habits, and cycling safety. In these areas, he has extensive experience and expertise beyond that of an ordinary person.” Id. at 563. However, the court did not allow the witness to provide any opinions as to the cause of the bicycle frame failure at issue or that alternative designs or safety features might have prevented the failure. Id. at 563-66.
While the decisions discussed above may not all be published, they provide good insight into how federal courts will apply the Daubertanalysis and Fed. R. Evid. 702 in bicycle product liability cases. These cases are consistent in holding that a person with specialized engineering or metallurgy training and knowledge will not be allowed to testify about a bicycle defect or bicycle design unless he performs tests on the bicycle in question or has industry experience in frame design or manufacturing. On the other hand, while someone with extensive knowledge of the bicycling manufacturing and/or retail industry may be allowed to teach the jury how certain bicycle components work or explain the historical use of certain building materials and techniques, that person will not be allowed to provide an opinion as to the cause of an accident absent a scientific analysis of the plaintiff’s bicycle.
Therefore, a party litigating a bicycle product liability case in federal court would be well-advised to retain both an engineer/metallurgist to inspect and test the bicycle and provide an opinion as to the cause of the product failure, as well as an industry insider to put the scientific testing evidence in context and provide the jury with an understanding of the bicycle manufacturing or retail industry in relation to the particular defect at issue.
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