The full case caption appears at the
end of this opinion. Flaum, Circuit Judge. Mark A. Smith filed suitin Indiana state court against Ford Motor Company(“Ford”) alleging that the injuries he sustainedfrom a car accident were the result of adefective product designed and manufactured byFord. Ford removed the suit to the United StatesDistrict Court for the Southern District ofIndiana under 28 U.S.C. sec.sec. 1332 and1441(a), and the district court dismissed Smith’ssuit with prejudice. For the reasons statedherein, we reverse and remand. I. BACKGROUND On November 8, 1995, at approximately 2:00a.m., Smith was involved in a one-car accidentwhen he fell asleep at the wheel of his FordEconoline 150E van and careened off the road. Atthe time of the accident, Smith was traveling inthe rightmost westbound lane of Highway 50 nearDillsboro, Indiana. After falling asleep, Smithcrossed over the left lane, across a grassymedian, and over the two eastbound lanes beforehe awoke. Upon waking, Smith jerked the wheel ofthe van to the right to move the van back to thewestbound lanes of traffic. Smith claims that atthis point, the steering mechanism in the vanmalfunctioned and he was no longer able tocontrol the van. The van left the road, hit aconcrete culvert, and eventually came to rest ina soybean field. Smith suffered several injuriesas a result of this accident. After the accident,Smith stored the van and alleges that it hasremained in an unaltered condition. On November 7, 1997, Smith filed a complaintagainst Ford in Indiana state court alleging thathis injuries from the 1995 accident were causedby a defect in the power steering gearbox of theFord van he was driving. Ford removed the case tothe United States District Court for the SouthernDistrict of Indiana, invoking that court’sdiversity jurisdiction. Smith proposed to call two experts in supportof his case. His first expert was James Cassassa,a mechanical engineer, who formerly worked forGeneral Motors performing accident reconstructionand analysis, and who currently works for WolfTechnical Services, Inc., a private company,performing similar work. Cassassa inspected theFord van in May 1996 and May 1998. As a result ofhis inspections, Cassassa concluded that therewas an internal failure in the steering gearboxof the van, that the failure had occurred whilethe van was in use before it left the road, andthat the failure was not caused by the impact ofthe van with anything else. Although Cassassa wasable to conclude that the steering had failed dueto a defect in the parts inside of the steeringgearbox, he was unable to determine whether thedefect was due to the design or the manufactureof the affected parts. Cassassa outlined severalhypothetical design and manufacturing defectsthat could have caused the failure. Smith’s second witness was Karl Muszar, ametallurgical engineer, who worked for GeneralMotors for seventeen years before leaving to formhis own engineering firm. After the gearbox wasremoved from Smith’s van and opened under thesupervision of a Ford technician, Muszarinspected and tested the mechanisms inside thegearbox. He determined that the steering hadfailed due to overloading of the torsion bar andthat the specific parts were manufacturedaccording to Ford specifications. Like Cassassa,Muszar concluded that the steering failure wasthe result of either a manufacturing defect or adesign defect but could not determine which typeof defect had actually occurred. Muszar offeredseveral hypothetical explanations for the failureand stated that in his opinion using a differentmetal for the torsion bar would have been abetter choice. Smith’s original counsel withdrew on February 4,1999, and Smith’s present counsel first appearedbefore the district court on February 18, 1999.On March 24, 1999, Smith’s new counsel filed amotion to continue the jury trial, which had beenset for April 26, 1999, because he had a previoustrial already set for state court on the sameday. The district court denied this motion onApril 15, 1999, and the trial schedules were notworked out until April 20, when the state courtjudge was persuaded to reset the state trial.Meanwhile, on March 15, Ford filed a motion toexclude the testimony of Smith’s experts. Smithwas ordered to respond to this motion by April19, but did not respond until April 21, when hefiled a motion for leave to file late along withhis response to Ford’s motion to exclude hisexpert witnesses. The district court struckSmith’s written response but allowed Smith torespond to the motion in open court on April 26. On April 26, after empaneling the jury, thedistrict court conducted a hearing regardingFord’s motion to exclude Smith’s experts. Thedistrict court concluded that the experts werenot qualified to testify as to design defects andthat their testimony would not be helpful to thejury. The district court then granted Ford’smotion to exclude both experts. Smith moved fora continuance to acquire a design expert whowould satisfy the court, but this motion wasdenied. Ford then moved to dismiss the case onthe ground that under Indiana tort law a claimfor product liability could not be proven withoutexperts. The district court granted this motionand dismissed the case with prejudice. Smith nowappeals. II. DISCUSSION Smith argues that the district court erred whenit 1) excluded his expert witnesses; 2) deniedhis motion for a continuance to obtain additionalexperts; and 3) granted Ford’s motion to dismisshis claims with prejudice. We address each ofthese arguments in turn. A. Exclusion of Expert Witnesses Smith first argues that the district courterred in excluding the testimony of his expertsCassassa and Muszar on the ground that neitherwitness was qualified as an expert in a relevantfield and neither witness’s testimony wasreliable or would have been helpful to the jury.We review de novo whether the district courtapplied the appropriate legal standard in makingits decision to admit or exclude experttestimony. See Walker v. Soo Line R.R. Co., 208F.3d 581, 590 (7th Cir. 2000); United States v.Hall, 165 F.3d 1095, 1101 (7th Cir. 1999). Wereview for abuse of discretion the districtcourt’s choice of factors to include within thatframework as well as its ultimate conclusionsregarding the admissibility of expert testimony.See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.137, 152 (1999) (stating that the abuse ofdiscretion standard “applies as much to the trialcourt’s decisions about how to determinereliability as to its ultimate conclusion”). Acourt abuses its discretion when it commits “aserious error of judgment, such as reliance on aforbidden factor or failure to consider anessential factor.” Powell v. AT&T Comm., Inc.,938 F.2d 823, 825 (7th Cir. 1991). The admission of expert testimony isspecifically governed by Federal Rule of Evidence702 and the principles announced in Daubert v.Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).Rule 702 states:
If scientific, technical, or other specializedknowledge will assist the trier of fact tounderstand the evidence or to determine a fact inissue, a witness qualified as an expert byknowledge, skill, experience, training, oreducation, may testify thereto in the form of anopinion or otherwise.
The Supreme Court in Daubert interpreted thisrule to require that “the trial judge must ensurethat any and all scientific testimony or evidenceadmitted is not only relevant, but reliable.” 509U.S. at 589. In other words, as a thresholdmatter “a district court is required to determine(1) whether the expert would testify to validscientific knowledge, and (2) whether thattestimony would assist the trier of fact with afact at issue.” Walker, 208 F.3d at 586. Whenmaking these determinations, the district courtfunctions as a “gatekeeper” whose role is “tokeep experts within their proper scope, lestapparently scientific testimony carry more weightwith the jury than it deserves.” DePaepe v.General Motors Corp., 141 F.3d 715, 720 (7th Cir.1998). In analyzing the reliability of proposed experttestimony, the role of the court is to determinewhether the expert is qualified in the relevantfield and to examine the methodology the experthas used in reaching his conclusions. See Kumho,526 U.S. at 153. An expert may be qualified by”knowledge, skill, experience, training, oreducation.” Fed. R. Evid. 702. While “extensiveacademic and practical expertise” in an area iscertainly sufficient to qualify a potentialwitness as an expert, Bryant v. City of Chicago,200 F.3d 1092, 1098 (7th Cir. 2000), “Rule 702specifically contemplates the admission oftestimony by experts whose knowledge is based onexperience,” Walker, 208 F.3d at 591. See Kumho,526 U.S. at 156 (“[N]o one denies that an expertmight draw a conclusion from a set ofobservations based on extensive and specializedexperience.”). Thus, a court should consider aproposed expert’s full range of practicalexperience as well as academic or technicaltraining when determining whether that expert isqualified to render an opinion in a given area. A court’s reliability analysis does not endwith its conclusion that an expert is qualifiedto testify about a given matter. Even “[a]supremely qualified expert cannot waltz into thecourtroom and render opinions unless thoseopinions are based upon some recognizedscientific method.” Clark v. Takata Corp., 192F.3d 750, 759 n.5 (7th Cir. 1999). However, weemphasize that the court’s gatekeeping functionfocuses on an examination of the expert’smethodology. The soundness of the factualunderpinnings of the expert’s analysis and thecorrectness of the expert’s conclusions based onthat analysis are factual matters to bedetermined by the trier of fact, or, whereappropriate, on summary judgment. See Daubert,509 U.S. at 595 (“The focus, of course, must besolely on principles and methodology, not on theconclusions that they generate.”); Walker, 208F.3d at 587 (stating that when addressing whetherexpert testimony is reliable the district courtshould not consider the “factual underpinnings”of the testimony but should determine whether”[i]t was appropriate for [the expert] to rely onthe test that he administered and upon thesources of information which he employed”). When analyzing the relevance of proposedtestimony, the district court must considerwhether the testimony will assist the trier offact with its analysis of any of the issuesinvolved in the case. The expert need not have anopinion on the ultimate question to be resolvedby the trier of fact in order to satisfy thisrequirement. See Walker, 208 F.3d at 587. Inaddition, “[e]xperts are allowed to positalternate models to explain their conclusion.”Id. at 589. Where an expert’s hypotheticalexplanation of the possible or probable causes ofan event would aid the jury in its deliberations,that testimony satisfies Daubert’s relevancyrequirement. Id. at 589-90. However, we cautionthat these hypothetical alternatives mustthemselves have “analytically sound bases” sothat they are more than mere “speculation” by theexpert. See DePaepe, 141 F.3d at 720. Thequestion of whether the expert is credible orwhether his or her theories are correct given thecircumstances of a particular case is a factualone that is left for the jury to determine afteropposing counsel has been provided theopportunity to cross-examine the expert regardinghis conclusions and the facts on which they arebased. Walker, 208 F.3d at 589-90. It is not thetrial court’s role to decide whether an expert’sopinion is correct. The trial court is limited todetermining whether expert testimony is pertinentto an issue in the case and whether themethodology underlying that testimony is sound.See Kumho, 526 U.S. at 159 (Scalia, J.,concurring) (stating that the trial court’sfunction under Daubert is to exercise itsdiscretion “to choose among reasonable means ofexcluding expertise that is fausse and sciencethat is junky”). The Daubert standard applies to all experttestimony, whether it relates to areas oftraditional scientific competence or whether itis founded on engineering principles or othertechnical or specialized expertise. See Kumho,526 U.S. at 141. In Daubert, the Supreme Courtoutlined four factors that may be pertinent tothe district court’s analysis of experttestimony. Those traditional factors are: 1)”whether [the expert's theory] can be (and hasbeen) tested”; 2) “whether the theory ortechnique has been subjected to peer review andpublication”; 3) “the known or potential rate oferror”; and 4) “general acceptance” among therelevant scientific community. Daubert, 509 U.S.at 593-94. However, as the Supreme Court hasrepeatedly emphasized, the Rule 702 test is aflexible one, and no single factor is eitherrequired in the analysis or dispositive as to itsoutcome. See Kumho, 526 U.S. at 141 (“[T]he testof reliability is ‘flexible,’ and Daubert’s listof specific factors neither necessarily norexclusively applies to all experts or in everycase.”); Daubert, 509 U.S. at 594 (“The inquiryenvisioned by Rule 702 is, we emphasize, aflexible one.”). The trial court must use thecriteria relevant to a particular kind ofexpertise in a specific case to “make certainthat an expert, whether basing testimony uponprofessional studies or personal experience,employs in the courtroom the same level ofintellectual rigor that characterizes thepractice of an expert in the relevant field.”Kumho, 526 U.S. at 152. In this case, the district court excluded bothof plaintiff’s proposed experts because itconcluded that neither witness 1) qualified as anexpert in the design or manufacture of powersteering gear boxes; 2) had submitted his workfor peer review; or 3) had an opinion as towhether there was a design or manufacturingdefect in the steering mechanism. In other words,the district court excluded Muszar and Cassassabecause it concluded that they were not qualifiedas experts in a relevant field, their conclusionswere unreliable, and their opinions would not behelpful to the jury. We conclude that the district court properlyapplied the Daubert framework to the proposedexpert testimony by considering whether thattestimony is reliable and relevant to an issue inthe case. We now consider whether the districtcourt abused its discretion in either theconclusion it reached to exclude the proposedtestimony or the choice of factors it used toreach that conclusion. Plaintiff’s proposed expert Muszar is ametallurgical engineer with a bachelor’s degreeand over forty years of practical experience inthat field. For seventeen of those years, Muszarworked as an engineer for General Motors.Plaintiff’s proposed expert Cassassa has abachelor’s degree in mechanical engineering andover ten years of experience in the field ofautomobile accident reconstruction and automobilemechanical failure analysis. Two of those yearswere spent performing accident analysis forGeneral Motors and five were spent performingsimilar work for a major insurance company. Thedistrict court concluded that neither Muszar norCassassa is an expert in the field of automotivedesign or manufacturing. The district court thenstated that it believed Muszar is an expert inthe field of metallurgical engineering and didnot express an opinion on whether Cassassa hadexpertise in another field. [FOOTNOTE 1] We agree with the district court that Muszarand Cassassa are not qualified as automotiveengineers. However, we disagree with the districtcourt’s subsequent conclusion that because theseengineers are not qualified in the field ofautomotive design or manufacture, their expertisecannot be relevant to the present case. As wediscuss below, expert testimony need only berelevant to evaluating a factual matter in thecase. That testimony need not relate directly tothe ultimate issue that is to be resolved by thetrier of fact. See Walker, 208 F.3d at 587. Thus,the district court erred in concluding thatMuszar and Cassassa were not qualified as expertsin a relevant field solely because theirexpertise related to an area other than the oneconcerning the ultimate issue to be decided bythe trier of fact. The district court also concluded that themethodologies employed by Muszar and Cassassawere unreliable because they had not been “peerreviewed.” However, as noted above, no singlefactor among the traditional Daubert list isconclusive in determining whether the methodologyrelied on by a proposed expert is reliable. Asthe Supreme Court stated, “[t]he fact ofpublication (or lack thereof) in a peer reviewedjournal . . . will be a relevant, though notdispositive, consideration.” Daubert, 509 U.S. at594 (emphasis added). In Kumho, the Court madeclear that the reliability test under Rule 702 isan individualized test whose relevant factorswill depend on the type of expertise at issue ina given case. See Kumho, 526 U.S. at 150 (statingthat in some cases “the relevant reliabilityconcerns may focus upon personal knowledge orexperience. . . . [T]here are many differentkinds of experts, and many different kinds ofexpertise.”) (citations omitted). While thedistrict court noted that neither expert had hadhis work published in a peer reviewed journal,the district court did not indicate whetherpublication is typical for the type ofmethodology these experts purported to employ.The district court merely recited the failure ofthe experts to publish and concluded that theirtestimony was unreliable. However, as notedabove, lack of peer review will rarely, if ever,be the single dispositive factor that determinesthe reliability of expert testimony. Without afurther explanation of the connection betweenlack of publication and reliability in this case,we cannot determine the extent to which thisfactor bears on the reliability of themethodologies used by plaintiff’s proposedexperts. For example, if Muszar was merelyapplying well-established engineering techniquesto the particular materials at issue in thiscase, then his failure to submit those techniquesto peer review establishes nothing about theirreliability. Similarly, if Cassassa’s accidentreconstruction methodology is based on hisextensive practical experience in this area,rather than novel methodology subject topublication, his failure to publish does not castdoubt on the reliability of his analyticaltechnique. However, other factors not consideredby the district court, such as the generalacceptance of the techniques in the relevantengineering and accident analysis communities orthe extent of the experts’ practical experienceperforming those techniques, may bear on thereliability of the proposed evidence. On therecord before us, we conclude that the districtcourt erred by relying on a single, potentiallyirrelevant, criterion to determine thatplaintiff’s proposed experts based theirconclusions on methodologies that are notsufficiently reliable to satisfy the requirementsof Rule 702. Finally, the district court concluded thatneither Muszar’s nor Cassassa’s testimony wouldbe helpful to the jury because neither expertcould conclusively determine whether a design ormanufacturing defect caused the failure in thesteering gearbox to occur. [FOOTNOTE 2] As noted above, inorder for an expert’s testimony to qualify as”relevant” under Rule 702 it must assist the juryin determining any fact at issue in the case.Although under Rule 704(a) an expert may testifyto the ultimate issue in a case, the expert’stestimony need not relate to the ultimate issuein order to be relevant under Rule 702. SeeWalker, 208 F.3d at 587. In this case, Muszarproposed to testify concerning the method bywhich the parts within the steering gearbox weremanufactured and the manner in which those partsfailed. Muszar would also have testified that inhis opinion there were superior materials Fordcould have used in designing some of those parts.Cassassa’s proposed testimony related to themanner in which the accident occurred, the causeof the accident, whether the steering had in factfailed, and the timing of the failure in relationto the other events during the accident. Cassassaalso proposed to render an opinion as to somepossible causes for the steering failure. All ofthis proposed testimony relates to facts at issuein this case. The district court may have beencorrect that none of plaintiff’s proposed experttestimony bears directly on the ultimate issue ofwhether a design or manufacturing defect causedplaintiff’s accident. However, under Rule 702,expert testimony need only be relevant to anissue in the case; it need not relate directly tothe ultimate issue. We conclude that the districtcourt erred when it determined that becauseplaintiff’s proposed expert testimony would notassist the trier of fact with resolving theultimate issue in the case it failed Rule 702′srelevancy requirement. [FOOTNOTE 3] Because the district court erroneouslydetermined that neither Muszar nor Cassassa werequalified as experts in a relevant field and thattheir proposed testimony was not relevant to anyfact at issue in this case and because districtcourt failed to consider more than the singlefactor of peer review in analyzing thereliability of these experts’ proposed testimony,we conclude that the district court abused itsdiscretion when it excluded plaintiff’s proposedexperts. [FOOTNOTE 4] B. Continuance Plaintiff next argues that the district courterred when it declined his request for acontinuance to find new experts after excludinghis experts on the day of trial. Because we haveconcluded that the district court erred in itsapplication of Rule 702 to plaintiff’s experts,we need not reach this issue at this time. Wenote briefly that a district court has broaddiscretion in determining when to grant acontinuance. See Morris v. Slappy, 461 U.S. 1, 11(1983); Brooks v. United States, 64 F.3d 251, 256(7th Cir. 1995). However, where a trial court’sown action causes the need for a continuance andthat court then denies the continuance, resultingin prejudice to a party, courts have generallyfound an abuse of discretion. See Fowler v.Jones, 899 F.2d 1088, 1095-96 (11th Cir. 1990);Fenner v. Dependable Trucking Co., Inc., 716 F.2d598, 602 (9th Cir. 1983). In this case, the district court did not ruleon the admissibility of plaintiff’s experttestimony until the day of trial. It is unclearfrom the record whether plaintiff’s late filingof his response to defendant’s motion to excludehis experts prompted the court’s delay in rulingon that motion. However, we note that in casessuch as this one that rely heavily on experttestimony, a district court should set adiscovery and trial schedule that realisticallyprovides both sides with an adequate opportunityto introduce necessary evidence. The applicationof Rule 702 to proposed expert testimony canoften be an uncertain process and is bestconducted in such a manner that litigants have areasonable opportunity to locate experts who meetthe rule’s requirements. C. Dismissal Smith finally argues that the district courterred in summarily dismissing his claims withprejudice after excluding his experts. We notethat the district court’s order dismissingplaintiff’s action does not cite any standard orrule under which that dismissal was made. We canonly presume, given the stage of the proceedingsat which this action was taken, that the districtcourt intended its order to constitute a grant ofsummary judgment for the defendant. See Fed. R.Civ. P. 12(b) (stating that where a courtpurports to dismiss a case under 12(b)(6) butconsiders matters outside of the complaint, thedismissal must be converted to one on summaryjudgment). However, the instant order containsonly the conclusion that the court had struckplaintiff’s experts and does not contain anysupporting reasoning. In addition, the court didnot provide the plaintiff with the opportunity tosubmit a written response to defendant’s motion.See Fed. R. Civ. P. 12(b), 56(c). We glean from the district court’s oraldiscussion of this issue that it concluded thatplaintiff could not establish as a matter of lawa claim for relief under Indiana productliability law if he did not have experts totestify on his behalf. Because we have concludedthat the district court abused its discretion inthe manner in which it excluded plaintiff’sexperts, we also conclude that the district courterred in dismissing plaintiff’s case on thatbasis. However, it does not necessarily followthat, even if the proposed expert testimony isadmitted, plaintiff has supplied sufficientsupport for his claim to survive summaryjudgment. We note that ordinarily dismissals onsummary judgment are accompanied by a writtenanalysis of the district court’s reasons fordismissing the case. Because this textualexposition of the district court’s reasoning isabsent here, we cannot determine whether thedistrict court would have been justified ingranting summary judgment to the defendant evenif plaintiff’s expert testimony had not beenexcluded. We therefore remand this case to thedistrict court for its reconsideration of thisissue. III. CONCLUSION For the reasons stated herein, we Reverse thedistrict court’s dismissal of plaintiff’s caseand Remand this case for further proceedingsconsistent with this opinion. :::FOOTNOTES::: FN1 The district court stated that it found Cassassawas not an expert in “failure analysis.” However,from the context in which this statement wasmade, we interpret this statement as anothermeans of stating that Cassassa was not qualifiedas an automotive engineer. The district court didnot discuss Cassassa’s qualifications in thefield of accident reconstruction. FN2 We note that the district court appears to havemisconstrued the experts’ testimony in this case.Both experts testified that in their opinion thefailure in the steering gearbox was caused eitherby a manufacturing or a design defect. Althoughneither expert was able to determine which typeof defect was the actual cause of the accident,both experts testified that in their opinion sometype of defect did exist. FN3 We note that it would be appropriate for adistrict court to apply Rule 702′s requirementsto individual pieces of proposed testimony, sothat if the district court found a particularpart of that testimony irrelevant or unreliable,it could exclude that portion of the testimonywithout striking the proposed evidence in itsentirety. FN4 We wish to emphasize that our ruling is limitedto assessing the district court’s application ofRule 702 to plaintiff’s proposed experttestimony. We do not express an opinion onwhether that testimony should have been admitted.It is possible that after a proper application ofthe Daubert/Kumho test the district court willstill conclude that the proposed testimony, or aportion thereof, is inadmissible under Rule 702.It is also possible that the district court mayfind that the evidence should be excluded undera different evidentiary rule. Furthermore, thedistrict court may conclude that plaintiff’sexpert testimony passes all of the evidentiaryrequirements and is admissible but that, evenwith that testimony, plaintiff fails to make outa case that survives summary judgment.
Smith v. Ford Motor Co. In the United States Court of Appeals for the Seventh Circuit Mark A. Smith, Plaintiff-Appellant, v. Ford Motor Company, Defendant-Appellee. No. 99-2656 Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP97-1965-C-Y–Richard L. Young, Judge. Argued: February 10, 2000 Decided: June 2, 2000 Before: Coffey, Flaum, and Wood, Circuit Judges.
