UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2000
(Argued: November 28, 2000 Decided: December
06, 2000 )
Docket No. 00-7460
WILLIAM BROOKS, as Parent and Natural
Guardian of Matthew Brooks, a Minor,
OUTBOARD MARINE CORPORATION,
Before: VAN GRAAFEILAND and KATZMANN,
Circuit Judges, and JONES, (1)
The plaintiff William Brooks appeals from
a March 22, 2000 order of the United States District Court for the Western
District of New York (Skretny, J.), granting summary judgment to
the defendant in this case arising from the amputation of Matthew Brooks'
hand by an outboard motor manufactured by the defendant Outboard Marine
A. BRUCE ROZAS, Rozas & Rozas, Mamou,
Louisiana (Lawrence J. Strauss, Nicholas, Perot & Strauss, Akron, New
York, on the brief), for Appellant.
RICHARD A. CHESLEY, Jones, Day, Reavis &
Pogue, Chicago, Illinois (Michael B. Willian, on
the brief, William D. Christ, Phillips, Lytle, Hitchcock, Blaine &
Huber, Buffalo, New York, on the brief), for Appellee.
tragic accident occurred on June 25, 1996. Theresa Brooks rented a boat
from Harry's Bait Shop in Waterport, New York for her 14-year-old son Matthew
and his 15-year-old friend Andrew May. Neither boy was old enough to rent
the boat or in possession of any certification or license which would allow
him to legally do so. After renting the boat, Mrs. Brooks sent the two
boys off to fish unsupervised. The owner of the shop also understood that
the boys would use the boat unsupervised. Matthew's fishing line soon became
entangled with the propeller. The motor was still running but was in neutral
so that the propeller itself was not spinning. Matthew wrapped the line
around his right hand to get a better grip, and reached into the water
to attempt to untangle it. At that time, perhaps due to Matthew's shirt
catching on the gearshift, the motor engaged in reverse and Matthew's hand
was pulled into the now-spinning propeller and amputated.
Brooks brought suit on behalf of his son Matthew against the owner of Harry's
Bait Shop, Andrew May, and Outboard Marine Corporation ("OMC"), the manufacturer
of the motor. Andrew May and Harry's settled with the plaintiff, and the
suit continued against OMC under two theories: that the motor was defective
and unreasonably dangerous due to the lack of a propeller guard and a defective
gearshift mechanism which allowed only minimal pressure to cause the engine
to shift into gear.
February 1998, OMC deposed the plaintiff's expert witness. After the close
of discovery on March 31, 1998, the plaintiff requested permission to extend
discovery in order to obtain a new expert witness. In the meantime, OMC
filed a motion for summary judgment, arguing that the plaintiff's current
expert should be precluded from testifying and that summary judgment was
proper on the plaintiff's two theories of liability. The motion was referred
to the magistrate judge. The plaintiff then filed a curriculum vitae and
one-page report of a new expert witness, Robert A. Warren. Mr. Warren's
report concluded that either a propeller guard or an emergency motor shut
off device, known as a "kill switch," (2)
could have prevented the accident or lessened its severity. After OMC deposed
Mr. Warren in June 1998, the plaintiff then filed a response to the pending
summary judgment motion. At oral argument, plaintiff's counsel abandoned
the "shift mechanism" and "propeller guard" claims, conceding that the
only claim on which he would proceed was the new "kill switch" claim. The
magistrate recommended denying OMC's motion for summary judgment, finding
that it was "premature" because the defendant had not properly responded
to the plaintiff's new design defect theory. SeeBrooks
v. Outboard Marine Corp., 47 F. Supp. 2d 380, 388 (W.D.N.Y. 1999).
In addition, the magistrate found it premature to rule on the admissibility
of Mr. Warren's testimony, noting that such rulings are usually made on
a more complete record. Seeid.
The district court adopted the magistrate's recommendation.
Mr. Warren produced a videotape demonstrating how a kill switch works,
and also submitted to a second deposition. OMC then filed a second motion,
moving pursuant to Fed.R.Evid. 104 for a ruling that Mr. Warren be precluded
from testifying and pursuant to Fed.R.Civ.P. 56 for summary judgment. OMC
argued that Mr. Warren was unsuited by education or experience to testify
about the kind of boat and engine in question, and also that his conclusion
that the kill switch would have activated and prevented or lessened the
severity of the accident was untested and unsupported by any examination
of the actual boat or motor, or the interview of any witnesses. OMC also
argued that it was entitled to summary judgment because of certain alleged
admissions regarding the kill switch made by Mr. Warren in his deposition.
magistrate agreed that Mr. Warren's opinion regarding the kill switch was
"unreliable and speculative, and would not assist the jury in its determination
of the facts at issue in this case." The magistrate noted inter
alia that Mr. Warren had not performed any tests on the actual boat
or engine involved in the accident, conducted any interviews with any witnesses,
or conducted "any actual testing to determine whether the use of a lanyard-activated
kill switch would have disengaged the engine under the circumstances."
As a result, the magistrate recommended precluding Mr. Warren from testifying.
Without this testimony, the magistrate found that the plaintiff could not
make out a prima facie case of a design defect and recommended granting
summary judgment. The district court adopted this recommendation over the
plaintiff's objections. This appeal followed.
review a grant of summary judgment de
Products, Inc. v. Cahill, 223 F.3d 141, 143 (2d Cir. 2000) (per
curiam). Brooks makes three principal arguments on appeal. First, he argues
that the Supreme Court's recent decision in Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), requires the
party challenging the admissibility of its opponent's expert witness to
first use its own expert to call the challenged expert's testimony "sufficiently
into question." Id.
at 149. Only then, contends the plaintiff, can the district court analyze
the admissibility of the testimony of the expert witness. This argument
is without merit. In Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme
Court instructed that the Federal Rules of Evidence require the trial court
to "ensure that any and all scientific testimony or evidence admitted is
not only relevant, but reliable." Id.
at 589. The subsequent decision in Kumho
Tire makes clear that this gate-keeping function applies not just
to scientific expert testimony as discussed in Daubert,
but also to testimony based on "'technical' and 'other specialized' knowledge." Kumho
Tire, 526 U.S. at 141 (quoting Fed.R.Evid. 702). The plaintiff's
argument that this gate-keeping role disappears when a proposed expert
witness is not challenged by an opposing expert witness thus runs counter
to the thrust of Daubert
and Kumho Tire. Nowhere
in either opinion is there language suggesting that testimony could only
be "called sufficiently into question" by a rebuttal expert.
also argues that the lower court erred in finding that Mr. Warren's testimony
was speculative and unreliable. Reviewing this decision under an abuse
of discretion standard, seeKumho
Tire, 526 U.S. at 142 (citing General
Electric Co. v. Joiner, 522 U.S. 136, 143 (1997)), it is evident
that the district court acted well within its discretion. To note but a
few shortcomings of Mr. Warren's testimony: he had never seen the actual
boat or motor either in person or in photographs, had never spoken to either
of the boys involved in the accident, was unaware of the dimensions of
the boat and the placement of the seats in relation to the motor, did not
know precisely what happened and where the boys were positioned in the
time immediately preceding the accident, and had never attempted to reconstruct
the accident and test his theory. The failure to test a theory of causation
can justify a trial court's exclusion of the expert's testimony. SeeClark
v. Takata Corp., 192 F.3d 750, 758-59 (7th Cir. 1999); Dancy
v. Hyster Co., 127 F.3d 649, 652 (8th Cir. 1997); Cook
v. American Steamship Co., 53 F.3d 733, 739-40 (6th Cir. 1995), abrogated
on other grounds, Joiner,
522 U.S. 136. On appeal, the plaintiff appears to suggests that the videotape
represents a test of Mr. Warren's theory, but Mr. Warren made it clear
at his second deposition that the videotape was not meant to simulate the
actual accident but merely was a "demonstration of how a kill switch would
work." As such, it lends no reliability to Mr. Warren's theory.
determined that the district court acted within its discretion in excluding
Mr. Warren's testimony, the plaintiff has no evidence in the record to
support his theory that the motor had a design defect which caused the
accident or increased its severity. As a result, summary judgment was properly
granted. The judgment of the district court is therefore affirmed.
1. The Honorable Barbara
S. Jones, United States District Court for the Southern District of New
York, sitting by designation.
2. A "kill switch" operates
by means of a lanyard attached to both the motor and the operator of the
boat; when the operator moves more than the length of the lanyard from
the motor, as, for example, when the operator is thrown out of the boat,
the kill switch automatically shuts off the engine.