Without Probable Cause, Expert Design Defect Opinion Excluded

Design defect claims need a probable cause, not a list of possible causes, and experts cannot simultaneously claim an injury was caused by a design defect and by a malfunction due to a manufacturing defect, the Nebraska Supreme Court has ruled, upholding the summary judgment in favor of the manufacturer.

In Pitts vs. Genie Industries, Inc., an electrician, Trevor Pitts, had been working in June 2013 from an aerial lift (aka, “cherry picker”), 30 feet in the air, when the lift tipped over, seriously injuring Pitts. One of the four outriggers ― intended to extend, stabilize and level the lift — had retracted while Pitts was aloft.

Pitts retained Dr. John Boye, an electrical engineer and professor emeritus at the University of Nebraska-Lincoln as his electrical engineering expert witness. Boye reviewed photos of the accident scene and a November 2014 video inspection of the lift. In the video inspection, some 20 different malfunctions of the left outrigger occurred, as well as the lift's technical documents, the work order history, fuel log and related depositions. In 2015, he completed a physical inspection of the lift, where he found that the lift did not malfunction the way it did in the 2014 video, leading him to opine that the lift had been altered in someway and that it might be impossible to ever find out what was wrong originally.

Boye opined that the accident occurred from an electrical malfunction, but he could not pinpoint what component caused the lift to malfunction. It could have been:

1. incorrect or shorted wiring;
2. bad components, such as bad or touching diodes;
3. other bad or faulty components;
4. failed or stuck limit switches;
5. the sticking of failed or “worn out” switches, buttons, and relays; and,
6. potential movement earlier in the day of the accident which loosened diodes or wires and could have caused a short-circuit.

Boye also opined that the technical schematics and diagrams had at least 19 “errors and inconsistencies,” although he did not identify any design defect in them. He testified that certain design documents and technical information regarding circuit elements that were never provided to him were critical to understanding the lift's design.

He did claim that the design was unreasonably dangerous because the controls in the platform bucket were interconnected with the ground control circuity, allowing the possibility that the outriggers could be retracted while the bucket was raised. He claimed the lift was defective because it should have had a different design that the three-position control switch used which left the ground and platform bucket controls interconnected. He proposed a four-position switch that would have separated the circuitry.

The trial court rejected Boye's claim as to the control switch. While Boye was an expert electrical engineer, he testified that he did not know how any other aerial lifts were designed and was unaware of industry standards for such designs. He did not test his four-position switch theory and admitted that even with his four-position switch an electrical malfunction could have occurred. Without testing, without any industry knowledge, the trial court found his opinion on the defective control switch design unreliable and excluded it.

While Boye did claim that the accident was caused by an electrical malfunction, he did not pinpoint what component caused the malfunction, or which was the most probable. The trial court found that, as the possible causes of the malfunction included both those related and unrelated to the design, it would be mere speculation to assume the failure was caused by a defective design. The court granted Genie judgment as a mater of law on Pitts' design defect claim, to which the state Supreme Court affirmed.

As for the manufacturing defect claim, it was based on the theory that because the lift malfunctioned, “the only reasonable inference to be drawn from this set of events is that a flaw in the lift's circuitry caused this electrical malfunction.”

Unfortunately, the Nebraska Supreme Court had recently ruled in O'Brien v. Cessna Aircraft Co. (298 Neb. 109, 903 N.W. 2d 432, 2017), that plaintiffs cannot simultaneously claim an accident was caused by specific design defects and use the malfunction theory to claim a manufacturing defect.

With no other evidence of a manufacturing defect, the trial court granted summary judgment on that claim as well, which the state Supreme Court also affirmed.

See: Pitts vs. Genie Industries, Inc., 2019 302 NEB 88