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The 3d U.S. Circuit Court of Appeals has ruled that a plaintiff in a products liability suit is not required to proffer an expert on warnings if an engineering expert can establish that a warning was needed to make the product safe. Pineda v. Ford Motor Co., No. 07-1191. The 3d Circuit said that a lower court’s decision to bar the plaintiff’s sole expert � and later to dismiss the case for lack of expert testimony � was premised on a faulty application of the U.S. Supreme Court’s 1993 decision, Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). The ruling revives a suit brought by Jose Pineda, a mechanic who claims he was seriously injured while replacing the rear glass on a Ford Explorer because Ford had failed to warn that the glass could shatter if a mechanic did not follow a specific step-by-step process to avoid stressing the glass beyond its breaking point. U.S. Magistrate Judge Jacob P. Hart ruled that Pineda’s expert, Craig D. Clauser � an engineer who specializes in glass and ceramic fractures � was not qualified to testify because he was not an expert on warnings. Hart also ruled that Clauser could not testify about possible “alternative warnings” by referring to Ford’s 2004 “safety recall instruction” (SRI) � which described the procedure for replacing the liftgate brackets and hinges on the 2002 Ford Explorer � because the SRI is a remedial measure that is inadmissible under Rule 407 of the Federal Rules of Evidence. The 3d Circuit ruled that Hart’s Daubert analysis was too rigid and that Clauser should have been allowed to testify because his expertise in the science of glass fractures was sufficient to prove liability. Writing for the court, visiting Judge Joseph E. Irenas of the U.S. District Court for the District of New Jersey found that Clauser was “substantively qualified to testify” on the issue of whether mechanics needed a warning about the risk of shattering the glass “because a proper warning is also a solution to an engineering problem.” Clauser was proffered as an expert to establish two points: that a specific, step-by-step procedure was required in order to reduce the likelihood that the rear liftgate glass would fail when replacing the liftgate brackets and hinges on a 2002 Ford Explorer; and that such a procedure should have been outlined in an instruction in the 2002 Explorer’s service manual but was not. Irenas said Hart erred by insisting that Pineda needed an expert on warnings to prove his case. Since Pineda was not complaining that the warning was inadequate but that there was no warning at all, Clauser’s testimony about the need for a warning was sufficient. Clauser “only testified that neglecting to follow the steps of an instruction when replacing the 2002 Explorer’s liftgate brackets and hinges might result in failure of the liftgate glass, and that a warning was necessary to alert a technician to the potential problem,” Irenas wrote. Hart also erred, Irenas found, in holding that Clauser should be barred from testifying that an adequate warning was available because Clauser relied on the SRI later published by Ford, which is inadmissible in court. Irenas said Hart “focused exclusively” on Rule 407 and “failed to consider Rule 703,” which governs the bases of opinion testimony by experts. “Rule 703 is clear that the SRI does not need to be admissible evidence in order for Clauser’s opinion that the 2002 service manual lacked adequate instructions and warnings to be admitted,” Irenas wrote.

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