In the Supreme Court of Cincinnatia

Transcription

1 No In the Supreme Court of Cincinnatia MUNAS MUSCLE MACHINES, INC., v. Petitioner BYRON HUGGINS, Respondent ON WRIT OF CERTIORARI TO THE FIRST APPELLATE CIRCUIT COURT OF CINCINNATIA BRIEF OF THE PETITIONER TEAM 15 Counsels of Record

2 QUESTIONS PRESENTED I. Whether the Contract Specification defense applies to claims based on strict liability design defect? II. Whether the First Appellate Circuit erred in finding the trial court abused its discretion by ruling the Petitioner s expert testimony inadmissible? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED.. i TABLE OF CONTENTS.. ii TABLE OF AUTHORITIES... iii, iv STATEMENT OF THE CASE STANDARD OF REVIEW ARGUMENT... 4 I. THIS COURT SHOULD FIND THAT THE CONTRACT SPECIFICATION DEFENSE APPLIES TO STRICT LIABILITY DESIGN DEFECT CLAIMS A. The Contract Specification Defense Applies to All Theories of Liability 5 B. Negligence Standard of Liability Is No Different Than Strict Liability 9 II. THE GOVERNMENT CONTRACT DEFENSE AND THE CONTRACT SPECIFICATION DEFENSE ARE ANALOGOUS AND WARRANT APPLICATION TO STRICT LIABILITY CLAIMS. 10 III. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPROPERLY FINDING THE PETITIONER S EXPERT TESTIMONY INADMISSIBLE.. 12 A. The Trial Court Strictly Applied Jurisprudence Without Reviewing the Statutes that Occupy the Field 13 B. Ms. Gallagher s Affidavit Suggest that She Can Assist the Jury to Determine Whether the SmithSquat s Locking Mechanism Rendered the Product Not Reasonably Safe 15 CONCLUSION. 19 ii

4 TABLE OF AUTHORITIES Cases Boyle v. United Technologies Corp., 487 U.S. 500 (1988)...10, 11, 12 Carley v. Wheeled Coach, 991 F.2d 1117 (3rd Cir. 1993)...10, 12 Chadwick v. WellPoint Inc., 561 F.3d 38 (1st Cir. 2009) 18, 19 Challoner v. Day & Zimmermann, Inc., 512 F.2d 77 (5th Cir. 1975) cert. granted, judgment vacated, 423 U.S. 3 (1975)..5, 6 Daubert v. Merrell Dow Pharaceutricals, 509 U.S. 579 (1993)...12, 13, 14 Hatch v. Trail King Indus. Inc., 656 F.3d 59, (1st Cir. 2011)..5, 6, 7, 8 Herrod v. Metal Powder Products, 886 F. Supp. 2d 1271 (D. Utah 2012)...4 In re Agent Orange Prod. Liab. Litig., 506 F. Supp. 762 (E.D.N.Y. 1980) on reconsideration in part, 580 F. Supp (E.D.N.Y. 1984)..11 Johnston v. United States, 568 F. Supp. 351 (D. Kan. 1983)..5, 6, 8 Jones v. Hutchinson Mfg., Inc., 502 S.W. 2d 66 (Ky. 1973)...9 McCabe Powers Body Co. v. Sharp, 594 S.W. 2d 592 (Ky. 1980).6, 7, 8, 9 Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386 (1982)...4 Narog v. Walker, 317 Cin. 3d 2409 (2004).4 Richland-Lexington Airport Dist. v Atlas Prop., 854 F. Supp. 400 (D.S.C. 1994)...12 Russek v Unisys Corp., 921 F. Supp (D.N.J. 1996).12 Shaw v. Grumman Aerospace Corp., 778 F.2d 736 (11th Cir. 1985) 12 Smith v. Goodyear Tire and Rubber Co., 495 F.3d 224 (5th Cir. 2007).18, 19 U.S. v. Hanna, 293 F.3d 1080 (9th Cir. 2002)...17 Yearsley v. W.A. Ross Const. Co., 309 U.S. 18 (1940)..10 iii

5 Statutes and Regulations 28 U.S.C. 1346(b) (1988) U.S.C. 2680(a) (2006)...11 Cinicinnatia R. E. 702 (2014)..13, 14, 15, 16 Cincinnatia R. E. 704 (2014)...17, 18 Fed. R. Evidence 702 (2014)...13, 14, 15, 16 Fed. R. Evid. 704 (2014).17, 18 Restatement (Third) of Torts: Prod. Liab. 1 (1998).4 iv

6 STATEMENT OF THE CASE This case comes before this Court asking important questions of law. This action arises out of a business venture between Mr. Brozowsky, the owner of BROzowsky s Gym, LLC., (BRO s gym) and Munas Muscle Machines, Inc. (M3). 1 Mr. Brozowsky and M3 began doing business together in 2010 when Mr. Brozowsky contracted with M3, which was known at that time as Munas Mobility, Inc., to design and manufacture all of the cardio equipment for BRO s gym. 2 From 2008 to 2012 M3 exclusively dealt in cardio equipment and was the leading dealer of exercise machines in the Southern Cincinnatia Region. 3 Contracting with M3 allowed Mr. Brozowsky to buy equipment much cheaper than he would from out-of-state vendors. 4 This contractual relationship aided in the growth of BRO s gym membership. 5 In 2011, Mr. Brozowsky urged M3 to begin designing resistance training, or weight training equipment in order to maintain a supply of exercise equipment that would match the increasing demand for membership at the gym. 6 After acquiescing to Mr. Brozowsky s suggestion, M3 began to derive great success from their move to upper-body resistance-training machines. 7 This success is what prompted M3 to change its name from Munas Mobility, Inc. to Munas Muscle Machines, Inc. 8 Mr. Brozowsky then approached M3 a third time in 2012 with a proposition for a design of his 1 R R R R Id. 6 Id. 7 Id. 8 Id. 1

7 own. 9 Prior to this time, M3 had never designed or manufactured any equipment for lower body strength. 10 Mr. Brozowsky wanted M3 to manufacture Smith machines which incorporated a new locking mechanism. 11 A traditional Smith machine locking mechanism consists of hooks attached to a barbell, that when rotated, rest on pegs to support the weight. 12 Mr. Brozowsky s locking mechanism operated like a seat belt, and would lock in response to rapid downward movement. 13 Mr. Brozowsky was so confident in his design that he approached M3 to manufacture the SmithSquat machine to his exact specifications. 14 Mr. Munas, M3 s owner and CEO, tried to give Mr. Brozowsky some advice on the design, but Mr. Brozowsky insisted that the specifications be followed exactly or he would take his idea somewhere else. 15 Since BRO s gym made up a large portion of M3 s annual revenue, Mr. Munas did not want to disappoint one of its prominent contractors. 16 By February 2013, M3 built the SmithSquat to Mr. Brozowsky s exact design and installed it at BRO s gym. 17 The Respondent, Mr. Byron Huggins, was a professional mail man at the time of the incident sued upon. 18 Mr. Huggins, a member of BRO s gym, decided to use the SmithSquat machine while training for a marathon. 19 On his first set, Mr. Huggins loaded the machine with 9 Id. 10 R R Id. 13 R Id. 15 R Id. 17 Id. 18 R R. 19 2

8 200 pounds of weight. 20 Upon trying to lift the weight, Mr. Huggins suddenly collapsed to the floor. 21 The locking mechanism, designed by Mr. Brozowsky, did not engage as it was supposed to. 22 As a result of the malfunction, Mr. Huggins sustained severe injuries which rendered him paraplegic. 23 Mr. Huggins sued M3 for strict products liability design defect and BRO s gym for strict products liability failure-to-warn. 24 Mr. Huggins settled with BRO s gym shortly after discovery began. 25 Judge Leach of the Cincinnatia Court of Common Pleas for Cliffton County rejected Petitioner s assertion of the contract specification defense. 26 Additionally, the court excluded the testimony of Amelia Gallagher, expert witness for Petitioner, reasoning that her opinion was not based on scientific knowledge, would not assist the trier of fact, and was not relevant to the merits of the case. 27 Petitioner then motioned for interlocutory appeal on those two issues, which was granted. 28 Appeal was taken, and on November 15 th, 2014 Senior Circuit Judge Hensley of the Court of Appeals of Cincinnatia then held that 1) The contract specification defense does not apply to Strict Liability Design Defect Claims, and 2) the trial court erred in excluding the expert testimony of Amelia Gallagher. 29 Petitioners are now before this Court on Writ of Certiorari. 20 Id. 21 Id. 22 Id. 23 Id. 24 R Id. 26 Huggins v. Munas Muscle Machines, Inc., No. 13-CV-9188 (Ct. Com. Pl. Aug. 15, 2014). 27 Id. 28 Id. 29 Huggins v. Munas Muscle Machines, Inc., 2014-Cin-9168 (1st Cir.). 3

9 STANDARD OF REVIEW In reviewing question of first impression, the state of Cincinnati reviews lower courts opinions de novo. 30 ARGUMENT I. THIS COURT SHOULD FIND THAT THE CONTRACT SPECIFICATION DEFENSE APPLIES TO STRICT LIABILITY DESIGN DEFECT CLAIMS. Under Cincinnatia law, Product Liability is applicable to one engaged in the business of selling or otherwise distributing products [that] sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. 31 This definition has been interpreted by jurisprudence to include three required elements. First, the claimant must prove the presence of a defect when the product was in the defendant s control. 32 Second, the claimant must prove the defect was the proximate cause of injury to a reasonable foreseeable user. 33 Third, the claimant must prove that the product design was defective. 34 Each element must be satisfied in order for the claimant to recover his or her relief sought. Strict Liability is commonly referred to as liability without fault. Individuals selling and distributing products are held automatically liable for their defective product even when such nonmanufacturing sellers or distributors do not themselves render the products defective and regardless of whether they are in a position to prevent defects from occurring. 35 Strict liability focuses on the condition of the product at the instance it left the manufacturer s control See Narog v. Walker, 317 Cin. 3d 2409, 2413 (2004). 31 Restatement (Third) of Torts: Prod. Liab. 1 (1998). 32 Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 394 (1982). 33 Id. 34 Id. 35 Herrod v. Metal Powder Products, 886 F. Supp. 2d 1271, 1274 (D. Utah 2012). 36 Challoner v. Day & Zimmermann, Inc., 512 F.2d 77, 83 (5th Cir. 1975) cert. granted, judgment vacated, 423 U.S. 3 (1975). 4

10 However, in all cases where an action is brought against a defendant who is found liable, the defendant has the legal authority to assert a defense. A. The Contract Specification Defense Applies to All Theories of Liability. The contract specification defense should be applied to claims based on strict liability because a growing majority of states have ruled that the defense applies despite the theory of liability. 37 The contract specification defense applies to products manufactured to the order and specification of another, whether that other be the government or a private party. 38 A contractor is not liable for damages resulting from specifications provided by his employer unless those specifications are so defective and dangerous that a reasonably competent contractor would realize that there was a grave chance that his product would be dangerously unsafe. 39 The findings of the Court of Common Pleas and the Court of Appeals of Cincinnatia is based upon outdated law, and precedents that encompassed a minority of states. Relying on Johnston v. United States and Challoner v. Day & Zimmermann, Inc., both lower courts found that the contract specification is applicable only in a negligence cause of action. 40 In Johnson, four employers alleged that their cancer resulted due to the exposure of radiation that occurred during the course and scope of employment. 41 During their employment, plaintiffs were tasked with overhauling instruments that were shipped to the employer from the manufacturer. 42 The instruments contained ionizing radiation. 43 The employees brought suit against the manufacturers of the product for design defect under the theory of strict liability. 44 The defendants, both manufacturers, argued that they were not liable to the plaintiffs because the 37 Hatch v. Trail King Indus., Inc., 656 F.3d 59, 69 (1st Cir. 2011). 38 Johnston v. United States, 568 F. Supp. 351, 354 (D. Kan. 1983). 39 Id. 40 Johnston, 568 F. Supp. at 354; Challoner, 512 F.2d at Johnston, 568 F. Supp. at Id. 43 Id. 44 Id. 5

11 injury-causing instrument were dictated by contract specifications. 45 The court held that the contract specification defense is rooted in ordinary negligence principles and does not apply to claims rooted in strict liability. 46 In Challoner, plaintiffs brought suit against the defendants after a 105mm. howitzer prematurely exploded during combat. 47 The plaintiffs alleged that the defendants, manufacturers of the ammunition, were strictly liable because the evidence proved that the ammunition was defective. 48 The court held that the defendants were not immune to liability based upon the contract specification defense because that defense had not been applied in strict liability cases. 49 The majority of states have rejected the holdings of Johnston and Challoner regarding the contract specification defense s application to strict liability product design defects. A growing majority of courts have held that even in strict liability a manufacturer who merely fabricates a product according to the purchaser s design is not responsible, in the absence of an obvious defect, if the design proves bad. 50 Thus, the vitality of the contract specification defense claim as it relates to defective products is not dependent upon the theory of liability. 51 In McCabe Powers Body Co. v. Sharp, the defendant constructed an aerial boom to the exact specification of the Kentucky Division of Purchases. 52 Defendant s failure to manufacturer the aerial boom to the exact design specification would have lead to a lack of payment by the defendant and a returned delivery of the product. 53 The aerial boom s design specification 45 Id. 46 Id. at Challoner., 512 F.2d at Id. 49 Id. at Hatch, 56 F.3d at Id S.W. 2d 592, 593 (Ky. 1980). 53 Id. 6

12 required one side of the boom to have an open door. 54 One day on the job, plaintiff fell 15 to 17 feet from the aerial boom through the open door. 55 The plaintiff filed suit against the defendant, manufacturer of the aerial boom. 56 The manufacturer argued that he was not liable to the plaintiff because he was protected under the contract specification defense. 57 The Supreme Court of Kentucky held that the differentiation between negligence and strict liability regarding the applicability of the contract specification defense to defective designs was not relevant. 58 The court ruled that the only relevant standard was reasonable care. 59 The court further held that the real issue before the court was the liability of a manufacturer who followed exact design specifications and created an open and obvious defectively designed product. 60 In Hatch v. Trail King Indus., the court held that a manufacturer may be held liable for the harm caused by a dangerous product even in the absence of negligence. 61 Plaintiff was injured in an accident at work which caused him to be paralyzed from his chest down. 62 Instead of bringing suit against his employer, ADS, plaintiff asserted a design defect claim against the manufacturer, Trail King Industries, Inc. (hereinafter Trail King). 63 Trail King contracted with ADS to design a specialized trailer utilizing a hydraulically operated drop gate to ADS exact specification. 64 Plaintiff s complaint alleged that the hydraulically operated drop gate design was defective and the source of his injuries. 65 The question before the court was whether Trail King breached the implied warranty of merchantability by designing and selling a product to the exact 54 Id. 55 Id. 56 Id. 57 Id. at McCabe Powers Body Co., 594 S.W.2d at Id. 60 Id F.3d at Id. at Id. 64 Id. at Id. 7

13 specification of the designer which later caused severe injuries. 66 The court ruled that, liability under a theory of breach of warranty focuses on whether the product was defective and unreasonably dangerous, and not on the conduct of the user or the seller. 67 Like the courts in Hatch and McCabe, several states now apply the contract specification defense regardless of the theory of liability. Like the plaintiff in McCabe and Hatch, M3 designed the SmithSquat to the exact specification of the designer, Brozowsky. Like the warranty of merchantability claim in Hatch, strict liability addresses the issue of whether the manufacturer s product was defective as opposed to negligent actions of the defendant. Also like plaintiff McCabe, M3 was required to follow the exact specifications of the designer to receive payment after appropriate delivery of the specified designed product. However, unlike the plaintiff in McCabe, the fact that the locking mechanism contained a defect was not open and obvious to M3. Like the court s decision in McCabe and Hatch, this court should hold that differentiation between negligence and strict liability theories of liability are inapplicable when determining whether the contract specification defense applies to defective products. As previously stated, the contract specification defense will only alleviate liability when the specifications are not, so defective and dangerous that a reasonably competent contractor would realize that there was a grave chance that his product would be dangerously unsafe. 68 In the instant case, M3 attempted to provide input and criticism regarding the SmithSquat s design. 69 Mr. Brozowky refused the assistance and instructed M3 that the product should be designed to the exact specifications that had been provided. 70 Before the SmithSquat, M3 had manufactured cardio equipment, weight-lifting equipment, and upper body resistance-training 66 Id. at Hatch, 656 F.3d at Johnston, 568 F. Supp. at R R.18. 8

14 equipment. 71 The SmithSquat s purpose was lower body resistance-training and M3 s had no prior experience or had ever manufactured a product of this kind. 72 The SmithSquat was the first resistance-training machine that M3 had manufactured. Due to M3 s expertise with other types of training equipment, it possessed general knowledge regarding design specifications. However, M3 did not possess extensive knowledge regarding lower body resistance-training machines, which would lead to the belief that Brozowky s design was so defective and dangerous that it rendered SmithSquat dangerously unsafe. M3 had been incorporated for several years and was notable for its exercising equipment. Brozowky s specifications alone did not warrant clear and convincing evidence to prove that M3 knew or should have known that SmithSquat s specification was dangerously unsafe. B. Negligence Standard of Liability Is No Different Than Strict Liability. The contract specification defense should be applied to claims based on strict liability because the underlying principles of both theories of liability are one in the same. Although strict liability cases focus on whether the product which caused the injury was defective when it left the manufacturer s control, and negligence cases focus on the reasonableness of the defendant s actions, the purpose of both theories of liability is to protect the innocent foreseeable consumer. We think it apparent that when the claim asserted is against a manufacturer for deficient design of its product, the distinction between the so-called strict liability principle and negligence is of no practical significance so far as the standard of conduct required of the defendant is concerned. 73 Therefore, the standard of liability in both negligence and strict liability serves the same purpose. 71 R R.15, Jones v. Hutchinson Mfg., Inc., 502 S.W.2d 66, (Ky. 1973); McCabe Powers Body Co., 594 S.W.2d at

15 II. THE GOVERNMENT CONTRACT DEFENSE AND THE CONTACT SPECFICATION DEFENSE ARE ANALOGOUS AND WARRANT APPLICATION TO STRICT LIABILITY CLAIMS. The Appellate Circuit held that the government contract defense s application to strict liability is ultimately distinguishable from any purported application of the contract specification defense. 74 In support of this argument, the First Appellate Circuit reasoned that the Feres doctrine and the theory of shared sovereign immunity rendered the two defenses ultimately distinguishable. 75 However, the Supreme Court has held that the policy underlying the government contract defense is rooted in the discretionary function exception of the Federal Tort Claims Act (FTCA) and not the Feres doctrine. 76 Thus, the only distinguishing characteristic between the two defenses is the shared sovereign immunity, which a contractor benefits from when dealing with the federal government. The government contract defense first arose in the case of Yearsley, et al. v. W. A. Ross Constr. Co. 77 In Yearsley, the court carved out what initially was known as the government agent defense, which rendered a company that built dikes in the Missouri river immune to suit from damages to a third party. 78 That defense ultimately became what is now known as the government contract defense. Initially, the government contract defense only applied to military contracts because the underlying policy for asserting the defense came from the Feres doctrine, which supplied the government with immunity from tort liability arising out of injuries related to military service. 79 Today, the modern government contract defense supplies immunity to manufacturers military and nonmilitary that enter into contracts with the federal government 74 R Id. 76 Boyle v. United Technologies Corp., 487 U.S. 500, 500 (1988) U.S. 18 (1940). 78 Id. at Carley v. Wheeled Coach, 991 F.2d 1117, (3rd Cir. 1993). 10

16 from tort liability when the government performs a discretionary function over the manufacturer. 80 This defense, like the contract specification defense, only renders immunity to the manufacturer if the manufacturer has no ability to change the specifications of the product under contract. 81 Both defenses ultimately accomplish underlying tort liability principles which seek to impose liability on the wrongdoer whose act or omission caused the injury, not on the otherwise innocent contractor whose only role in causing the injury was the proper performance of a plan 82 In Boyle v. United Technologies Corp., the Supreme Court of the United States expressly rejected the Feres doctrine as the basis for applying the government contract defense. 83 The Feres doctrine was rejected because it was considered both too broad and too narrow. 84 In the alternative, the court applied the discretionary function exception of the FTCA such that the defense would apply to both military and nonmilitary causes of action. The FTCA authorizes damages suits against the United States for injuries caused by the tortious conduct of any federal employee acting within the scope of his employment, to the same extent that a private person would be liable under state law. 85 This waiver of sovereign immunity, however, does not apply to [a]ny claim... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 86 Since this distinguishing ruling by the Supreme Court, numerous federal and state courts have held that the government contract 80 Id. 81 In re Agent Orange Prod. Liab. Litig., 506 F. Supp. 762, 794 (E.D.N.Y. 1980) on reconsideration in part, 580 F. Supp (E.D.N.Y. 1984) disapproved of by Del Rio v. United States, 833 F.2d 282 (11th Cir. 1987). 82 Agent Orange, 506 F. Supp at Id. 84 Id., citing Boyle, 487 U.S. at U.S.C. 1346(b) (1988) U.S.C 2680(a). 11

17 defense applies to nonmilitary manufacturers. 87 Therefore, the government contractor defense is not exclusive to military-related injuries and applies the same as the contract specification defense. The only difference between the two defenses arises when the contractor or manufacturer contracts with the federal government. The Appellate Circuit determined that the theory of shared sovereign immunity discussed in Shaw v. Grumman Aerospace Corp., was also a rationale for distinguishing the government contract defense. 88 In Shaw, the Eleventh Circuit discussed what it characterized as the government agency defense. 89 That defense was said to arise when the contractor acted as an agent of the government and so shared sovereign immunity. 90 However, Shaw was later overruled by Boyle and the government agency defense was incorporated into the government contract defense. 91 After Boyle, the contractor only shares in immunity if it falls within the exception of the FTCA and the government performed a discretionary function. In designing the locking mechanism for the SmithSquat machine, Bro s Gym performed the same discretionary function as the government does and therefore, M3 should be provided with tort immunity, thus shifting the liability for wrongdoing on the party that created the faulty design. III. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPROPERLY FINDING THE PETITIONER S EXPERT TESTIMONY INADMISSIBLE. In addition to the argument above, this Court should affirm the First Appellate Circuit court s ruling because the trial court abused its discretion when it misapplied the law applicable to expert witnesses. First, we will review the trial court s application of Daubert v. Merrell Dow 87 See Richland-Lexington Airport Dist. v Atlas Prop., 854 F. Supp. 400 (D.S.C. 1994); Russek v Unisys Corp., 921 F. Supp (D.N.J. 1996); Carley, 991 F.2d F. 2d 736 (11th Cir. 1985); R Id. at Id. 91 Boyle, 487 U.S. 500,

18 Pharmaceuticals for expert witness qualification compared to the appropriate application of law, Cincinnatia Rule of Evidence 702. Second, Ms. Gallagher s expert testimony is pertinent to prove the SmithSquat is reasonably safe, which is an element of the Petitioner s alternative defense of strict products liability. A. The Trial Court Strictly Applied Daubert Without Reviewing Evidence Rules that Occupy the Field. The Appellate Circuit court appropriately overruled the trial court s decision to exclude Ms. Gallagher as an expert witness. The Appellate Circuit court presumed, and we must agree, the trial court abused its discretion because its decision to exclude Ms. Gallagher s testimony was based on her lack of formal education beyond high school, and her United States College of Exercise Medicine (USCEM) examination. These qualifications should not bar her as an expert. The trial court, without much discussion, strictly applied the Daubert v. Merrell Dow Pharmaceuticals standard, which narrowly reviews the requirements for an expert witness with scientific knowledge, exclusively. 92 The trial court, as gatekeeper, inappropriately excluded Ms. Gallagher s testimony reasoning the opinion was not based on scientific knowledge, would not assist the trier of fact, and was not relevant to the merits of the case. 93 Daubert is the seminal case to interpret Fed. R.E. 702, specifically illustrating scientific expert testimony. 94 The Supreme Court of the United States created a non-exhaustive list of factors for a trial judge to determine reliability of an expert. 95 Four factors are: 1) whether the expert s testimony can be tested, 2) whether the theory or technique has been subject to peer review and publication, 3) the known or potential rate of error, and 4) widespread acceptance in the relevant scientific U.S. 579 (1993); R R R Daubert 509 U.S. at 579; R

19 community. 96 Ms. Gallagher does not qualify as an expert under this limited interpretation of Daubert, because she does not have nor has she attempted to testify with scientific knowledge. However, the Cincinnatia Rule of Evidence 702 and the Fed. R.E. 702, both allow a witness with scientific, technical or other specialized knowledge to be qualified as an expert. 97 We urge the court to affirm the Appellate Circuit Court s interpretation of Cincinnatia Rule of Evidence 702. Ms. Gallagher is exactly the type of qualified expert rule 702 seeks to admit. 98 She has the knowledge, skill, experience, training and education in the gym, the appropriate setting to assist in resolving this litigation. Ms. Gallagher acquired the requisite knowledge, skill, and experience during her 15 years as a certified personal trainer (CPT) in gyms. As detailed in her affidavit, Ms. Gallagher has experience in the fields of exercise science, proper use of weighttraining equipment, and effects of exercise on the musculoskeletal and cardiovascular systems of the human body. 99 every four years. 100 Ms. Gallagher s training is ongoing and she must apply for recertification The recertification process requires Ms. Gallagher to obtain 12 hours of continuing education credit every two years through a combination of USCEM sponsored conferences, online courses, and webinars. 101 The Appellate Circuit Court presumed the trial court hinged its determination to exclude Ms. Gallagher as an expert because of her lack of formal education. Ms. Gallagher is a CPT with an education from USCEM. 102 To become a CPT through USCEM, Ms. Gallagher was required to have at least a high school diploma and successfully pass a 150-question multiple- 96 Daubert 509 U.S. at Cin. R.E R. 27, R R Id. 102 R

20 choice examination, with a score of 80% or higher. 103 The examination tested Ms. Gallagher s knowledge of 1) initial client consultation and assessment, 2) exercise programming and implantation, 3) exercises leadership and client education, and 4) legal, professional, business and marketing. 104 experience alone. 105 Experts are commonly qualified on expertise gained through work Ms. Gallagher attained her knowledge through 15 years of experience while working directly with exercise equipment, including the SmithSquat machine to gain knowledge that would assist her as a CPT. Ms. Gallagher is qualified as an expert and may testify to her opinion as detailed below. B. Ms. Gallagher s Affidavit Suggests that she Can Assist the Jury to Determine Whether the SmithSquat s Locking Mechanism Rendered the Product Reasonably Safe. As an expert, Ms. Gallagher can assist the jurors to understand the similarities and differences between the SmithSquat, the traditional Smith machine, and a free-weight barbell squat. 106 Cincinnatia Rule of Evidence 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 1) the expert s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2) the testimony is based on sufficient facts or data; 3) the testimony is the product of reliable principles and methods; and 4) the expert has reliably applied the principles and methods to the facts of the case. Above, it has been illustrated how Ms. Gallagher is qualified to be an expert. She is qualified to testify specifically regarding the functionality of the SmithSquat, because of the following reasons. First, Ms. Gallagher s specialized knowledge of the SmithSquat will help the trier of 103 R. 6, R R R

21 fact to understand the evidence or to determine a fact in issue. 107 Ms. Gallagher opines in her affidavit, the SmithSquat is not unreasonably dangerous by the defective locking mechanism. 108 The traditional Smith machine is well established in physical fitness training. The barbell rests on the user s shoulders and moves up and down between guide rods as the user squats. 109 When not in use, the barbell rests on hooks. 110 The locking mechanism of the SmithSquat eliminates the need to engage and disengage the barbell from hooks. 111 Second, Ms. Gallagher s testimony is based on 1) sufficient facts, 2) the product of reliable principles and methods; and 3) reliably applied principles and methods to the facts of the case. 112 Ms. Gallagher opined that any defect to SmithSquat s locking mechanism would have made the machine akin to performing squats with a simple barbell. 113 Her affidavit stated that, if the squat is performed properly, it is completely safe. 114 In her opinion, the SmithSquat machines are not inherently dangerous and can be performed safety by amateur and professional weightlifters alike, so long as the individual has proper form. 115 The Appellate Circuit Court s dissenting opinion attempts to mischaracterize Ms. Gallagher s testimony and expertise into a marginal assistance to the jury that is not necessary because the Petitioner did not allege improper use by the Respondent. 116 The Petitioner in this litigation has not called upon Ms. Gallagher to be an expert for improper use. Ms. Gallagher s 107 Cin. R.E. 702 (tailored to FRE 702). 108 R R Id. 111 Id. 112 Cin. R.E R Id. 115 R. 20, 21; Ms. Gallagher opines Mr. Huggins failure to acknowledge his beginner status and use less weight, failure to perform squats in proper form, and failure to use a spotter to ensure his safety is the problem that arises in this case. 116 R

22 testimony is not to determine if the Respondent improperly used the SmithSquat. But instead, her testimony is relevant to prove the issue that the SmithSquat is reasonably safe. The dissenting opinion states experts are not permitted to testify to aid in determinations easily made by juries without any help; however this is not the case. 117 This case is distinguished from the U.S. v. Hanna case within the dissenting opinion. Hanna was a criminal prosecution of a man that distributed documents to his neighbors and government offices suggesting that the president of the United States be killed. 118 The Hanna court found that, testimony failed to address an issue beyond the common knowledge of the jury regarding the communications of threats. 119 Since communication of threats was common knowledge of the jury, an expert was not required to testify. 120 However, proper form to prevent injury while squatting would not be common knowledge to a jury and has an established standard, which requires an expert opinion. According to the dissenting opinion experts may not simply opine on issues reserved exclusively for the trier of fact, and Ms. Gallagher s testimony is inadmissible because it usurps the role of the jury in opining on an ultimate issue of law. 121 Cincinnatia R. Evid. 704 states, an opinion is not objectionable just because it embraces an ultimate issue. 122 The dissenting opinion does not properly interpret Cincinnatia R. Evid. 704 because Ms. Gallagher can opine whether the SmithSquat is not reasonably safe as a matter of law. 123 The Advisory Committee Notes of Fed. R. Evid. 704 states, to prevent the witness from usurping the province of the 117 R. 33, citing U.S. v. Hanna, 293 F.3d 1080, 1086 (9th Cir. 2002). 118 Hanna, 293 F.3d at Id. 120 Hanna, 293 F.3d at 1082; R R Cin. R.E. 704 (tailored to Fed. R. E. 704). 123 R

23 jury, is aptly characterized as empty rhetoric. 124 Therefore, Ms. Gallagher did not usurp the role of the jury by opining an issue of law because the advisory committee notes a witness should be able to testify to their opinions. Furthermore, the dissenting opinion narrows the interpretation of Cincinnati Rule of Evidence The dissenting opinion tries to limit the type of expert the Petitioner is allowed by claiming Ms. Gallagher does not fall within the category of mechanical design or human biomechanics, and has no experience relating to what effect 200 lbs. of weight may have on a person s shoulders. 126 To the contrary, Ms. Gallagher s training and experience as a personal trainer has equipped her to be able to determine the effect of excessive weight on a person s shoulders in improper squat form. The dissenting opinion claims Ms. Gallagher attempts to opine that no material transformation of the product occurred and that this alone did not make the SmithSquat unreasonably dangerous. The Judge claims Ms. Gallagher testifies that if she could hold the barbell up without a spotter, Respondent should have been able to do the same. 127 The dissenting opinion claims this testimony excludes Ms. Gallagher as an expert and supports its decision with Smith v. Goodyear Tire & Rubber Co. and Chadwick v. WellPoint, Inc. 128 In Smith, the proposed expert attempted to testify about the integrity of a tire when he had never examined a tire professionally prior to the litigation and his only experience with tires was as a consumer. 129 Additionally, in Chadwick, the court determined that the expert, while 124 Fed. R. Evid. 704 (Advisory Committee Notes). 125 R R. 34, R Smith v. Goodyear Tire and Rubber Co., 495 F.3d 224, 227 (5th Cir. 2007); Chadwick v. WellPoint Inc., 561 F.3d 38, 48 (1st Cir. 2009). 129 Smith, 495 F.3d at

24 qualified in the field, lacked familiarity with the details of the case and rendered her testimony unhelpful to the trier of fact. 130 The dissenting opinion has made a gross mischaracterization of Ms. Gallagher s testimony. 131 She testified she has personal experience with the SmithSquat because as a diligent CPT she wanted to understand the utility of the locking mechanisms and the potential safety benefits the machine could have. 132 Ms. Gallagher s testimony is distinguished from the expert in Smith, because unlike the Smith expert, she has worked with exercise equipment for over 15 years and is a professional in the field. 133 Likewise, Ms. Gallagher s testimony is distinguished from the Chadwick expert because she is familiar with the SmithSquat and her testimony will be helpful to the trier of fact. This honorable Court should affirm the Appellate Circuit Court determination that Ms. Gallagher will aid the jurors in understanding the functionality of the machines. Additionally, this honorable Court should remand the case to the trial court. CONCLUSION This Court should apply the contract specification defense to strict liability claims. Additionally, this Court should find the First Appellate Circuit Court was correct when holding the trial court abused its discretion when it excluded Petitioner s expert testimony. 130 Chadwick, 561 F.3d at R R R