In the Supreme Court of Cincinnatia

Transcription

1 No In the Supreme Court of Cincinnatia MUNAS MUSCLE MACHINES, INC., v. BYRON HUGGINS, On Writ of Certiorari To The Supreme Court of Cincinnatia BRIEF OF PETITIONER Petitioner, Respondent. Counsel for Petitioner, Team Nine (30 Minutes Oral Argument) March 6, 2015

2 i TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... iv QUESTIONS PRESENTED... ix STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 I. STANDARD OF REVIEW... 5 II. THE FIRST APPELLATE CIRCUIT ERRED IN HOLDING THAT THE CONTRACT SPECIFICATION DEFENSE DOES NOT APPLY TO CLAIMS BASED ON STRICT LIABILITY DESIGN DEFECT. RATHER, THE THIRD RESTATEMENT AND PUBLIC POLICY SUPPORT ITS ADOPTION, AND THE GOVERNMENT CONTRACTOR DEFENSE PROVIDES SUPPORT IN THE INTEREST OF FAIRNESS... 5 A. The Contract Specification Defense applies to Strict Liability claims because the Second and Third restatement support its adoption and M3 should not be held responsible, since it did not design the SmithSquat 500 and acted as an independent contractor... 6 i. Courts have adopted the Contract Specification Defense under the Second Restatement because the standard of care in both negligence and design defect cases is reasonableness... 7 ii. The Contract Specification Defense should be adopted because the Third Restatements language considers whether a manufacturer acted reasonably in designing a defective product... 9 iii. The Contract Specification Defense is applicable to this case because M3 was not the party responsible for designing the SmithSquat iv. The Contract Specification Defense is applicable to this case because M3 was acting as an independent contractor B. The Contract Specification Defense should be adopted because public policy does not support holding a non-designer liable for a design defect C. The policy behind the Government Contract Defense supports extending the Contract Specification Defense in this case because it has underlying justifications in fairness and agency principles... 16

3 ii i. M3 acted as an agent of BRO s Gym when it consented to create the SmithSquat ii. The fairness principles supporting the Government Contract Defense are persuasive to adopting the Contract Specification Defense in this case because the facts are almost identical D. If adopted, the Contract Specification Defense would provide a narrow exception to Strict Products Liability Design Defect claims III. THE FIRST APPELLATE CIRCUIT DID NOT ERR IN HOLDING THAT THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT EXCLUDED THE PETITIONER S EXPERT TESTIMONY BECAUSE THE EXPERT WAS QUALIFIED, THE NON-SCIENTIFIC TESTIMONY WAS RELIABLE, AND IT WOULD HAVE ASSISTED THE TRIER OF FACT A. Ms. Gallagher was qualified to testify as an expert because she had specialized knowledge that was based on her relevant work experience, knowledge, and education B. Ms. Gallagher s expert testimony was admissible because she provided reliable, non-scientific testimony that was based on specialized knowledge i. The United States Supreme Court recognizes non-scientific expert testimony ii. Ms. Gallagher s non-scientific expert testimony was reliable because she possessed the same intellectual rigor required in her field C. Ms. Gallagher s expert testimony was admissible because it would have assisted the trier of fact i. Ms. Gallagher s expert testimony would have assisted the trier of fact to determine whether the SmithSquat 500 was a reasonably safe machine ii. Ms. Gallagher s expert testimony would have assisted the trier of fact because it went beyond the common sense of the jury iii. Ms. Gallagher s expert testimony would have assisted the trier of fact because she provided explanations for her ultimate conclusion D. Ms. Gallagher s expert testimony was admissible because the probative value of her testimony was not substantially outweighed by any prejudicial effect... 34

4 iii CONCLUSION APPENDIX... 37

5 iv TABLE OF AUTHORITIES CASES PAGE Ansick v. Hillenbrand Industries, 933 F. Supp. 773 (S.D. Ind. 1996) Beshada v. Johns-Manville Corp., 447 A.2d 539 (N.J. 1982)... 6, 7 Bloemer v. Art Welding Co., 884 S.W.2d 55 (Mo. Ct. App. 1994)... 12, 13 Bynum v. FMC Corp., 770 F.2d 556 (5 th Cir. 1985)... 6, 16, 17, 18, 19 Carnegie Mellon Univ. v. Marvell Tech. Group, Ltd., No , 2012 U.S. Dist. LEXIS (W.D. Pa. Dec. 15, 2012) Challoner v. Day & Zimmermann, Inc., 512 F.2d 77 (5 th Cir. 1975)... 7 Conner v. Quality Coach, Inc., 561 Pa. 397 (P.A. 2000)... 6 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)... passim Dhillon v. Crown Controls Corp., 269 F.3d 865 (7th Cir. 2001) Dickerson v. Cushman, Inc., 909 F. Supp (M.D. Ala. 1995) Dolphin Gardens, Inc. v. United States, 243 F. Supp. 824 (D. Conn. 1965) Foster v. Day & Zimmerman, Inc., 502 F.2d 867 (8 th Cir. 1974) Garrison v. Rohm & Haas Co., 492 F.2d 346 (6 th Cir. 1974) Gaydar v. Sociedad Instituto Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15 (1st 2003)... 24

6 v TABLE OF AUTHORITIES Continued General Electric Co. v. Joiner, 522 U.S. 136 (1997)... 5, 22, 28 Ginocchio v. Clark Construction Co., 10 Cin.2d 240 (1994)... 6 Greenman v. Yuba Power Prod. Inc., 59 Cal. 2d 57 (1962) Hartwell v. Danek Med., Inc., 47 F. Supp. 2d 702 (W.D. Va. 1999) Hatch v. Trail King Indus., 656 F.3d 59 (1 st Cir. 2011)... 6, 11, 15 Herrod v. Metal Powder Prods., 886 F. Supp. 2d 1271 (D. Utah. 2012)... 9, 10 Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777 (3rd Cir. 1996)... 23, 34 Holland v. Yellowstone Pipe Line Co., 306 F.2d 621 (9th Cir. 1962) In re Agent Orange Prod. Liab. Litig., 506 F. Supp. 762 (E.D.N.Y. 1980)... 6, 16, 17, 18, 19 In re Paoli R.R. Yard Pcb Litig., 35 F.3d 717 (3rd Cir. 1994) In re Torres v. City of Madera, No , 2005 U.S. Dist. LEXIS (E.D. Cal. 2005) Johnson v. United States, 568 F. Supp. 351 (D. Kan. 1983)... 5, 7 Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)... 23, 26, 27, 28 Lee v. Andersen, 616 F.3d 803 (8th Cir. 2010)... 33

7 vi TABLE OF AUTHORITIES Continued McCabe Powers Body Co. v. Sharp, 594 S.W.2d 592 (KY 1980)... 11, 12 McKay v. Rockwell International Corp., 704 F.2d 444 (9 th Cir. 1983)... 16, 18 Merritt, Chapman, & Scott Corp v. Guy F. Atkinson Co., 295 F.2d 14 (9 th Cir. 1961) Michalko v. Cooke Color & Chemical Corp., 451 A.2d 179 (N.J. 1982)... 8 Myers v. United States, 323 F.2d 580 (9 th Cir. 1963)... 5 Narog v. Walker, 317 Cin.3d 2409 (2004)... 5 Nichols v. Union Underwear Co., 602 S.W. 2d 429 (K.Y. 1980)...7, 8, 9, 10 Pages-Ramirez v. Ramirez-Gonzalez, 605 F.3d 109 (1st Cir. 2010) Perez v. State, 313 P.3d 862 (Nev. 2013) Persinger v. Norfolk & W.R. Co., 920 F.2d 1185 (4th 1990) Poulter v. Cottrell, Inc., No. 12 C 01071, 2014 U.S. Dist. LEXIS (N.D. Ill. 2014) Price v. Tempo, Inc., 603 F. Supp (E.D. Pa. 1985)... 16, 18, 19 Queen City Terminals, Inc. v. Gen. Am. Transp. Corp., 653 N.E.2d 661 (Ohio 1995)... 13, 14, 15 Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333 (11th Cir. 2003) Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43 (N.Y. 1924)... 5

8 vii TABLE OF AUTHORITIES Continued Sanner v. Ford Motor Co., 381 A.2d 805 (N.J. App. Div. 1976)... 6 Schneider v. Fried, 320 F.3d 396 (3rd Cir. 2003) Scott v. Sears, Roebuck & Co., 789 F.2d 1052 (4th Cir. 1986)... 21, 32, 33 Shaw v. Grumman Aerospace Corp., 778 F.2d 736 (11 th Cir. 1985) Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000) Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10th Cir. 2000) State v. McNamara, 934 Cin.3d 251 (1988) State v. Rothlisberger, 147 P.3d 1176 (Utah 2006) State v. Stevens, 78 S.W.3d 817 (Tenn. 2002) Thomas v. Sport City, Inc., 738 So. 2d 1153 (La. App. 2 Cir. 1999)... 30, 31 Tyus v. Urban Search Mgmt., 102 F.3d 256 (7th Cir. 1996) United States v. Barker, 553 F.2d 1013 (6th Cir. 1977)... 23, 24 United States v. Downing, 753 F.2d 1224 (3rd 1985) United States v. Jones, 107 F.3d 1147 (6th Cir. 1997) United States v. Laurienti, 611 F.3d 530 (9th Cir. 2010)... 24

9 viii TABLE OF AUTHORITIES Continued United States v. Locascio, 6 F.3d 924 (2nd Cir. 1993)... 24, 25 United States v. Majors, 196 F.3d 1206 (11th Cir. 1999) United States v. McDonald, 933 F.2d 1519 (10th Cir. 1991)... 29, 31, 32 Wilson v. City of Chicago, 6 F.3d 1233 (7th Cir. 1993) Yearsley v. W. A. Ross Constr. Co., 309 U.S. 18 (1940)... 16, 17, 18 STATUTES AND RULES PAGE Fed. R. Evid Fed. R. Evid , 22, 23, 27, 29 Fed. R. Evid , 33 Restatement (Second) of Torts 404 (comment a)...5 Restatement (Second) of Torts 402A (comment i)... 7, 8 Restatement (Third) of Torts: Prod. Liab Restatement (Third) of Torts: Prod. Liab. 1 (comment a)... 9 Restatement (Third) of Torts: Prod. Liab. 1 (comment e)... 10, 19 Restatement (Third) of Torts: Prod. Liab , 9 Restatement (Third) of Torts: Prod. Liab. 2(b)... 30

10 ix QUESTIONS PRESENTED I. Does the Contract Specification defense apply to claims based on strict liability design defect? II. Did the First Appellate Circuit err in finding the trial court abused its discretion by finding the Petitioner s expert testimony inadmissible?

11 1 STATEMENT OF THE CASE AND FACTS In 2008, Munas Mobility, Inc. ( M2 ) was founded to design and manufacture cardio equipment. (O, 5.) 1 M2 was incorporated in Cincinnatia and headquartered in Cliffton County, Cincinnatia. (Id. at 4.) From 2008 to 2012, M2 became the leading dealer in cardio machines, including treadmills, ellipticals, and exercise bicycles. (Id. at 5.) During this time, the founder of M2, Erik Munas, met Chris Brozowsky the owner of BROzowsky s Gym, LLC ( BRO s gym ). (Id.) Not only was Mr. Brozowsky the owner of a popular gym, but he was also a mechanical engineer and certified personal trainer. (Id.) In 2010, M2 agreed to design and manufacture cardio equipment for BRO s gym. (Id. at 6.) This partnership allowed Mr. Brozowsky to increase his equipment inventory in a cost-effective manner. (Id.) In 2011, M2 agreed to create upper-body weight-training equipment for BRO s gym. (Id.) Although this was M2 s first experience developing upper-body weight-training equipment, the business venture proved successful. (Id. at 6-7.) Accordingly, Mr. Munas changed the company s name to Munas Muscle Machines, Inc. ( M3 ). (Id. at 7.) Despite its name, M3 only developed cardio and upper-body weight lifting equipment. (Id.) In 2012, Mr. Brozowsky approached M3 with a design for a squatting machine, known as the SmithSquat 500. (Id. at 11.) Mr. Brozowsky used his engineering background to design the machine on his own. (Id. at 8.) At the time, M3 had no experience developing lower-body weight-lifting machines. (Id. at 7.) The design focused on a safety mechanism that would lock the machine in response to any rapid downward movement. (Id. at 10.) This locking 1 Citations to the record are as follows: O = the order issued by Judge Hensley, Huggins v. Munas Muscle Machines, Inc., 2014-Cin-9618 (1 st Cir.) A = the affidavit of petitioner s expert witness Amelia A. Gallagher. W = the Writ of Certiorari granted by the Supreme Court of Cincinnatia. T = the Motion for Summary Judgment Opinion and Order issued by Judge M. Leech Case No. 13-CV-9188.

12 2 mechanism would not engage when the machine was used at a slow and easy pace, unless the user activated the safety mechanism by rotating the barbell. (Id.) Mr. Brozowsky was excited about his design because it eliminated the need for a spotter. (Id.) Although Mr. Brozowsky was excited about the SmithSquat 500, Mr. Munas had some concerns. (Id. at 11.) Mr. Munas tried to provide his input and criticism of the design to Mr. Brozowsky. (Id.) However, Mr. Brozowsky was not willing to listen and demanded that M3 design the machine according to his exact specifications. (Id.) By this time, M3 s annual revenue was based on its contract with BRO s gym, so Mr. Munas reluctantly complied. (Id.) In late February 2013, the SmithSquat 500 was installed at BRO s gym. (Id.) On March 24, 2013, the plaintiff, Byron Huggins, went to BRO s gym. (Id. at 14.) Mr. Huggins was an avid runner, but new to weight lifting. (Id.) On this date, Mr. Huggins decided to incorporate weight lifting in to his exercise routine and used the SmithSquat 500 for the first time. (Id.) Without using a spotter, Mr. Huggins began his first set with 200 pounds on the machine. (Id.) As he was extending his legs, his body buckled under the weight of 200 pounds and he fell to the floor. (Id.) The barbell fell and landed on his neck, fracturing his T3 and T4 vertebrae. (Id.) This injury rendered him a paraplegic. (Id.) In part, Mr. Huggins filed a claim against M3 for strict products liability design defect, alleging that the locking mechanism was unreasonably dangerous. (Id. at 1, 14.) M3 moved for summary judgment and asserted that (1) it designed the SmithSquat 500 in accordance with the exact specifications provided by Mr. Brozowsky, so it could not be held liable for any design defect pursuant to the contract specification defense, or alternatively, (2) Mr. Huggins failed to prove that the purported defect made the machine not reasonably safe. (Id.)

13 3 To support the second argument, M3 offered the expert testimony of Amelia Gallagher in an affidavit. (Id.) Ms. Gallagher was a certified personal trainer, who had experience with freeweight squats and the SmithSquat 500. (A, 2, 12.) Ms. Gallagher also had experience assessing the proper weight for first-time users on squatting machines and instructing on proper form. (Id. at 8-9.) Based on this knowledge and experience, Ms. Gallagher opined that it was completely safe to perform squats with free-weights, if performed properly. (Id. at 14.) Further, any malfunction in the SmithSquat 500 locking mechanism would have required the user to complete squats in the same manner as if performed with free-weights. (Id. at 13.) Due to this, Ms. Gallagher concluded that the SmithSquat 500 was not unreasonably dangerous. (Id. at 16.) Rather, any danger would have resulted from improper form or an inappropriate weight. (Id. at 17.) Finally, she concluded that 200 pounds was likely too much weight for a first-time squatter. (Id. at 18.) Mr. Huggins filed a motion in limine to exclude Ms. Gallagher s expert testimony. (O, 2.) The Cincinnatia Court of Common Pleas denied summary judgment for M3 and granted Mr. Huggins s motion in limine. (Id.) The trial court concluded that the contract specification defense did not apply to strict liability claims. (Id.) The court also excluded Ms. Gallagher s expert testimony because it was not scientific, would not assist the trier of fact, and was not relevant to the case. (Id.) Subsequently, M3 filed an interlocutory appeal, which was granted. (Id.) On appeal, the Court of Appeals of Cincinnatia affirmed the trial court s denial of the contract specification defense, but reversed the decision to exclude Ms. Gallagher s expert testimony. (Id. at 33.) Following this, M3 filed an appeal with the Supreme Court of Cincinnatia. (W.) On January 30, 2015, the Supreme Court granted the writ of certiorari. (Id.)

14 4 SUMMARY OF THE ARGUMENT This Court should reverse the First Appellate Circuit s holding that the contract specification defense does not apply to strict liability design defect claims. Further, this Court should affirm the First Appellate Circuit s holding that Ms. Gallagher s testimony is admissible. The First Appellate Circuit reasoned that the contract specification defense did not apply to strict liability design defect claims because the focus in strict liability is on the product itself and not on the defendant s conduct. This is not the case. Cincinnatia has adopted the Third Restatement of Torts, which includes express language considering whether a manufacturer was reasonable. Further, holding a non-designer liable for a design defect does not further public policy. Last, the government contractor defense, based on a similar theory, is available in strict liability design defect claims. With reasoning in fairness, this is further evidence that the contract specification defense should apply to strict liability design defect claims. The First Appellate Circuit did not err in holding that the trial court abused its discretion when it excluded the Petitioner s expert testimony. Ms. Gallagher was qualified because she had specialized knowledge based on relevant work experience, certification, and training. Ms. Gallagher s non-scientific testimony was reliable because she possessed and utilized the same intellectual rigor required in her field. Last, her testimony would have assisted the trier of fact to determine whether the SmithSquat 500 was a reasonably safe machine. For these reasons, Ms. Gallagher s expert testimony was admissible. Therefore, the trial court abused its discretion when it excluded the Petitioner s expert testimony.

15 5 ARGUMENT I. STANDARD OF REVIEW This Court reviews de novo legal conclusions regarding questions of first impression. Narog v. Walker, 317 Cin.3d 2409, 2413 (2004). Applying the contract specification defense within the context of strict products liability is an issue of first impression for this Court. (O, 21.) This Court applies the abuse of discretion standard to evidentiary issues. General Electric Co. v. Joiner, 522 U.S. 136 (1997). II. THE FIRST APPELLATE CIRCUIT ERRED IN HOLDING THAT THE CONTRACT SPECIFICATION DEFENSE DOES NOT APPLY TO CLAIMS BASED ON STRICT LIABILITY DESIGN DEFECT. RATHER, THE THIRD RESTATEMENT AND PUBLIC POLICY SUPPORT ITS ADOPTION, AND THE GOVERNMENT CONTRACTOR DEFENSE PROVIDES SUPPORT IN THE INTEREST OF FAIRNESS. The contract specification defense is an affirmative defense that applies when a product is manufactured to the order and specification of another, either the government or a private party. Johnson v. U.S., 568 F. Supp. 351, 354 (D. Kan. 1983). The defense is born from ordinary negligence principals. Id. Specifically, 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. Johnson, 568 F. Supp at 354; see Restatement (Second) of Torts 404, comment a. Application of this defense was first recognized in cases involving contractors and builders. See Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43, 46 (N.Y. 1924). The government contract defense is an affirmative defense, shielding manufacturers from liability for creating a product causing injury if it complied strictly with design specifications set forth in a government contract. See Myers v. United States, 323 F.2d 580, 583 (9 th Cir. 1963).

16 6 The government contractor defense extended liability protection to cover both negligence and strict product liability suits. Sanner v. Ford Motor Co., 381 A.2d 805, 806 (N.J. App. Div. 1976). Originally, this extension was applied almost solely in cases involving the United States military. See, e.g., Bynum v. FMC Corp., 770 F.2d 556 (5 th Cir. 1985); McKay v. Rockwell International Corp., 704 F.2d 444 (9 th Cir. 1983); Brown v. Caterpillar Tractor Co., 696 F.2d 246 (3 rd Cir. 1982); In re Agent Orange Prod. Liab. Litig., 506 F. Supp. 762 (E.D.N.Y. 1980). However, courts have recognized the defense as applicable in cases involving non-military contracts with state agencies. See Conner v. Quality Coach, Inc., 561 Pa. 397, 399 (P.A. 2000). The majority of states have applied the contract specification defense to strict liability design defect claims for various reasons. Hatch v. Trail King Indus., 656 F.3d 59, 69 (1 st Cir. 2011). This decision is supported by the principles underlying the government contract defense, the language of the Third Restatement of Torts, and public policy. A. The Contract Specification Defense applies to Strict Liability claims because the Second and Third restatement support its adoption and M3 should not be held responsible, since it did not design the SmithSquat 500 and acted as an independent contractor. Cincinnatia has adopted the Restatement Third of Torts: Products Liability, which supports adopting the contract specification defense in strict liability design defect claims. Ginocchio v. Clark Construction Co., 10 Cin.2d 240 (1994). The Restatement states: One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. Restatement (Third) of Torts: Prod. Liab. 1. The First Appellate Circuit reasoned that the contract specification defense did not apply because the focus of strict liability cases is upon the product itself. (O, 20.); see Beshada v.

17 7 Johns-Manville Corp., 447 A.2d 539, 544 (N.J. 1982). The court relied on Challoner, arguing that strict liability cases do not focus on whether the defendant s conduct was reasonable. (O, 20.) There are two issues with this finding. First, the Third Restatement considers the manufacturers reasonableness. See Restatement (Third) of Torts: Prod. Liab. 2. Second, both the Second and Third restatements are predicated on the assumption that the manufacturer itself selected the design resulting in the defective condition. Nichols v. Union Underwear Co., 602 S.W. 2d 429, 433 (K.Y. 1980). i. Courts have adopted the Contract Specification Defense under the Second Restatement because the standard of care in both negligence and design defect cases is reasonableness. Although the First Appellate Circuit adopted the Third Restatement, it still relies on cases using the Second. See Johnson, 568 F. Supp. 351; Beshada, 447 A.2d 539; Challoner v. Day & Zimmermann, Inc., 512 F.2d 77 (5 th Cir. 1975), vacated and remanded on separate grounds, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed. 2d 3 (1975). The language of the Second Restatement is less supportive of adopting the contract specification defense to claims based on strict liability design defect. For example, under the Second Restatement, the Supreme Court of New Jersey held that the contract specification defense did not apply to strict products liability after evaluating a risk utility test. Beshada, 447 A.2d at 544. The risk utility test uses language found in the Second Restatement describing an unreasonably dangerous product. Beshada, 447 A.2d at 544; see Restatement (Second) of Torts 402A, comment i. The test weighs the utility of a product against its inherent risk to determine whether it is unreasonably dangerous. Id. The language from this test only considers how dangerous a product is, and thus, the court held that it should not consider a defendant s actions and that the defense did not apply. Beshada, 447 A.2d at 544.

18 8 Even though the language of the Second Restatement appears less supportive of adopting the defense, many courts have done so. In Nichols, the court reasoned that the language in the Second Restatement describing an unreasonably dangerous product is not as significant in design defect cases. Nichols, 602 S.W. 2d at 433; see Restatement (Second) of Torts 402A, comment i. Specifically, the court found that in a design defect case, the focus is on the feasibility of making a safer product rather than the knowledge of an ordinary consumer. Nichols, 602 S.W. 2d at 433. While courts have relied on the risk utility test, the fact finder in a design defect case still has to decide whether the manufacturer that placed the product in commerce acted prudently. Id. For this reason, the court stated that the difference between strict liability and negligence is of no practical significance. Id. In either case, the required standard is reasonable care. Id. Even if this Court used the Second Restatement, there is strong support for adopting the contract specification defense in design defect cases because the standard of liability required in both negligence and design defect cases is the same. The First Appellate Circuit reasoned that a defense based upon an absence of fault is inconsistent with the policies underlying the doctrine of strict liability. (O, 20.) The majority adopts a two-part test from Michalko, requiring proof of two basic elements, (1) a defective product design in existence when the product was under the defendant s control (defect); and (2) that the defect caused injury to a reasonably foreseeable user (causation). Michalko v. Cooke Color & Chemical Corp., 451 A.2d 179, 183 (N.J. 1982). However, as noted above, the manufacturer s actions should be considered to determine whether it acted reasonably when putting a product into the stream of commerce. Even if this Court continues to use this reasoning, it must still consider whether the manufacturer used reasonable care. Because this standard is the same in both negligence and strict liability, there should be no bar to utilizing the contract specification defense in design defect claims.

19 9 ii. The Contract Specification Defense should be adopted because the Third Restatements language considers whether a manufacturer acted reasonably in designing a defective product. As noted above, the State of Cincinnatia has adopted the Restatement Third of Torts. The language in the Third Restatement provides further support for adopting the contract specification defense in strict liability design defect cases. See Restatement (Third) of Torts: Prod. Liab. 2. A product has a defective design when: The foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor and the omission of the alternative design renders the product not reasonably safe. Restatement (Third) of Torts: Prod. Liab. 2. This language is similar to the court s reasoning in Nichols and explicitly mentions the conduct of the manufacturer. The Restatement borrows from both negligence and warranty principles. Restatement (Third) of Torts: Prod. Liab. 1, comment a. In relevant part, the negligence principles consider (1) whether there were foreseeable risks of harm, and (2) whether a reasonable alternative design was available. These two considerations require evaluating a manufacturer s actions. Here, M3 merely followed Mr. Brozowsky design. Due to this, the company did not act in a way that required it to consider alternative designs or foreseeable risks. Therefore, the contract specification defense applies. Courts that have adopted the Third Restatement and considered this issue have agreed that the contract specification defense can apply to design defect cases. In Herrod, the court considered whether the contract specification defense applied to a strict liability claim after the state adopted the Third Restatement. Herrod v. Metal Powder Prods., 886 F. Supp. 2d 1271,

20 (D. Utah. 2012). In analysis, the court recognized that when a contractor follows specifications from a purchaser, it is acting as a mere vehicle, through which the product passes; when the contractor did not design, sell, or recommend the product, and had no discretion in its selection, it cannot be liable for injuries caused by a defect in that product. Id. at In Herrod, the parties agreed that the manufacturer of the product played no role in recommending the use of the dangerous product. Id. at The manufacturer was not aware of any dangers associated with the product and therefore was merely a contractor following employer specifications. Id. As both negligence and strict liability consider fault, the court concluded that the contract specification defense applied regardless of the theory of liability. Id. at Following the Third Restatement, this Court should recognize M3 as an appropriate party to utilize the contract specification defense. Much like in Herrod, M3 was merely following specifications and the SmithSquat 500 was only sold to BRO s gym. (O, 11.) Because M3 had no prior familiarity with this type of machine and did not help design it, M3 is in no position to be liable for dangers associated with the final product. The conduct of M3 is relevant to a design defect claim. Therefore, M3 should be allowed to raise the contract specification defense, regardless of the theory of liability. iii. The Contract Specification Defense is applicable to this case because M3 was not the party responsible for designing the SmithSquat 500. The language of the Restatement operates under the assumption that the manufacturer is the responsible party for designing a product. See Restatement (Third) of Torts: Prod. Liab. 1 comment e. The contract specification defense provides a narrow exception to strict liability when the manufacturer is not the designer of the product. Design defect cases are founded upon the premise that the design itself, selected by the manufacturer, amounted to the defective condition that was unreasonably dangerous. Nichols, 602 S.W. 2d at 433. When the manufacturer

21 11 does not create the defective product design, there should be no recovery based upon a cause of action focused on reasonable care. For example, in Hatch, the court reasoned that analyzing fault is important when attempting to hold someone other than a designer liable for a design defect. 656 F.3d at 70. The Restatement does not consider a situation where the manufacturer merely follows a purchaser s design. Therefore, it is appropriate to adopt the contract specification defense as a narrow exception. As applied, M3 falls into the category of a manufacturer who did not design the product and should be allowed to raise the contract specification defense to protect itself. To hold [the manufacturer of another s design] liable for defective design would amount to holding a non-designer liable for a design defect. Logic forbids any such result." Garrison v. Rohm & Haas Co., 492 F.2d 346, 351 (6 th Cir. 1974). In fact, some courts have declined to consider the Restatement at all in a case with facts similar to those at hand because it is so drastically different from typical products liability cases. In McCabe Power Body Co., the court declined to apply the Second Restatement because the case was entirely different from the classic products liability case due to the added factor of design according to the buyer s specifications. McCabe Powers Body Co. v. Sharp, 594 S.W.2d 592, 594 (KY 1980). The plaintiff filed suit against the manufacturer of an aerial boom for a design defect after the plaintiff was injured while working on it. Id. at 593. The aerial boom, purchased by the Kentucky Division of Purchases, came with specifications and a warning that any deviation would result in no payment and refusal of delivery. Id. The manufacturer argued that it constructed the aerial boom in exact accordance with specifications provided by the company that purchased it. Id. The court held that the distinction between negligence and strict liability was of no practical

22 12 significance and ultimately found that the manufacturer was protected from liability because the product was manufactured according to plans furnished by the buyer. Id. at 594. The facts in McCabe Power Body Co. are analogous to those in our case and support the adoption of the contract specification defense for design defect cases. Mr. Brozowsky provided all specifications for the SmithSquat 500 and therefore M3 is not liable. (O, 11.) Similarly, it was Mr. Brozowsky who approached M3 with exact specifications for the product. (Id.) While M3 attempted to provide input and criticism regarding the design, Mr. Brozowsky stated he would go elsewhere with his idea unless his specifications were strictly complied with. (Id.) Because Mr. Brozowsky had full control over the design of the SmithSquat 500, it would go against all logic to hold M3 liable for any design they had no part in creating. iv. The Contract Specification Defense is applicable to this case because M3 was acting as an independent contractor. When a manufacturer is acting as a contractor and complies with a customer s plans and specifications, it is a complete defense to strict liability resulting from a defective design. Bloemer v. Art Welding Co., 884 S.W.2d 55, 56 (Mo. Ct. App. 1994). Normally, a contractor is provided with both plans and specifications. Id. at 58. In Bloemer, the defendants fabricated and installed a large machine called a cyclone, which was designed by a third party. Id. at 56. The defendants raised the contract specification defense against a strict liability design defect claim arguing that they were merely a contractor. Id. at 58. The court agreed and held that contractors of chattels and structures are not liable if a specified design is deemed unreasonably dangerous. Id. at 59. The court specifically recognized that the defendant was not in the business of designing or manufacturing cyclones. Id. The defendant had no specialized knowledge and there was no evidence that the designer relied on the contractor s knowledge. Id. Thus, the contractor

23 13 owed no duty to recommend revisions to the customer s design and was not liable for the defective design. Id. at 60. M3 was acting as an independent contractor when it produced the SmithSquat 500 to Mr. Brozowsky s exact specifications. M3 designed and manufactured weight-training machines, yet they only encompassed upper body exercises. (O, 7.) M3 never manufactured lower body strength machines until Mr. Brozowsky approached it with the SmithSquat 500 design. (Id.) Like Bloemer, M3 had no specialized knowledge, nor did Mr. Brozowsky rely on any knowledge from M3. (Id. at 11.) Mr. Brozowsky relied on his own expertise and background while conceptualizing the machine and refused any suggestions to his design. (Id. at 11.) M3 did not owe a duty to recommend revisions. As an independent contractor, M3 is not liable for the products it creates for its employers. B. The Contract Specification Defense should be adopted because public policy does not support holding a non-designer liable for a design defect. Public policy dictates the adoption of the contract specification defense in strict liability design defect cases. Strict liability has developed to achieve a number of specific policy objectives. Queen City Terminals, Inc. v. Gen. Am. Transp. Corp., 653 N.E.2d 661, 671 (Ohio 1995). First, these objectives aim to promote product safety and an incentive to design, manufacture, and distribute safe products. Id. Second, strict liability attempts to place the burden of injuries caused by products upon those who market them in an effort to treat it as a cost of production. Id. at 672. This is based on the assumption that manufacturers are in a better position to bear the costs of injuries because they can distribute the losses of a few among the many who purchase products. Id. Third, proving negligence can be costly and strict liability therefore gives the consumer protection from a manufacturer that has launched its product into the stream of commerce. Id.

24 14 Holding a manufacturer liable for a product that is custom-made and not launched into the stream of commerce does not promote product safety. In Queen City Terminals, Inc., the court adopted the contract specification defense in design defect cases based on strict liability policy objectives. Id. at 671. This case was brought against a defendant who manufactured a train car to the specifications of its employer. Id. at 672. The court found that because the order was custom-made and not launched into commerce, holding the manufacturer strictly liable furthered no safety policy. Id. The products consumer played a significant role in making decisions, computing risks, and setting safety specifications. Id. Therefore, it would not promote product safety to hold the manufacturer liable because it were not in control of the design decisions. Id. The SmithSquat 500 was coaxed into the market by Mr. Brozowsky and was not launched into the stream of commerce. Similar to Queen City Terminals, Inc., the SmithSquat 500 was a custom-made item; one M3 had never produced before. (O, 11.) M3 had no say in the design and was required to follow exact specifications. (Id.) Additionally, the SmithSquat 500 was never put on the market or advertised to other consumers. (Id.) Rather, it was solely installed in BRO s gym. (Id.) Holding M3 liable for injuries caused by the SmithSquat 500 would not encourage product safety because it had no control over the design. When a consumer requires a product designed to exact specifications, the manufacturer is in no better position to assume the costs than the customer is. In Queen City Terminals, Inc., manufacturing the train car was not a mass-scale enterprise. 653 N.E.2d at 672. The manufacturer was selected by the consumer to fulfill a specific, one-time order that met the customer s needs. Id. The court reasoned that because no other customers existed, the manufacturer had no opportunity to spread the costs between many customers. Id. Indeed, it

25 15 would be no more efficient for the manufacturer to internalize the costs than the ultimate consumer would. Id. Holding M3 liable for injuries caused by the SmithSquat 500 does not support a costshifting rationale. Much like in Queen City Terminals, Inc., M3 never produced exercise equipment that focused on lower body strength before the SmithSquat 500. (O, 7.) Instead, Mr. Brozowsky brought the design to M3 and it was made specifically for BRO s gym. (Id.) This one-time order created the design Mr. Brozowsky conceptualized. (Id.) M3 had no opportunity to spread the costs between many customers; the SmithSquat 500 was sold solely to Mr. Brozowsky. Unlike when a product is mass-manufactured, holding M3 liable would not help protect consumers because there are no other customers or purchasers of the SmithSquat 500. There is no average consumer when the purchaser has designed the product and it is not entered into the stream of commerce. In Queen City Terminals, Inc., the court reasoned that the extra protections afforded to a typical consumer of off-the-shelf products are not necessary when the purchaser designed the product. 653 N.E.2d at 672. The court evaluated the role the purchaser played in the design and specifications of the train car. Id. Specifically, the court stated that the heavy involvement put the purchaser and designer in the position of being liable for any design defects. Id. In Hatch, the court reasoned that normally, manufacturers have a duty to test the design for safety, but when the product is built to specifications, that burden is upon the designer. 656 F.3d at 69. The protections strict liability provides are not necessary where M3 had no control over the product and it was Mr. Brozowsky who owed the duty to test for reasonableness. There was only one consumer: Mr. Brozowsky, the designer of the product. (O, 11.) Because he designed the product, it was his responsibility to evaluate the design and check for defects. M3 owed no

26 16 duty to test the design for safety. Therefore, to hold it liable would not serve strict liability policy goals. Where a manufacturer creates a product to the exact specifications of a buyer, policy objectives support adopting the contract specification defense. C. The policy behind the Government Contract Defense supports extending the Contract Specification Defense in this case because it has underlying justifications in fairness and agency principles. The government contract defense protects a manufacturer from liability when it creates a product that causes an injury and the product complied strictly with government contract specifications concerning design. Price v. Tempo, Inc., 603 F. Supp. 1359, 1360 (E.D. Pa. 1985). Originally, the government contract defense was applied to private contractors acting on the government s behalf. Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 21 (1940). One of the reasons for allowing this defense is based on protecting the United States military decisionmaking. See, e.g., Bynum v. FMC Corp., 770 F.2d 556 (5 th Cir. 1985); McKay v. Rockwell International Corp., 704 F.2d 444 (9 th Cir. 1983); In re Agent Orange Prod. Liab. Litig., 506 F. Supp. 762 (E.D.N.Y. 1980). However, the government contract defense has expanded to cover strict liability design defects claims in non-military cases. See Price, 603 F. Supp Many theories have advanced to explain the government contract defense. In Yearsley, the court suggested that an agency relationship exists between the government and the contractor and therefore the government s immunity protects the contractor. 309 U.S. at Some courts have limited the defense to situations where an actual agency relationship existed. See Bynum, 770 F.2d at 564 (dictum); Foster v. Day & Zimmerman, Inc., 502 F.2d 867, (8 th Cir. 1974). Other courts reason that the government contract defense is necessary to allow the government to carry out its essential functions. Dolphin Gardens, Inc. v. United States, 243 F. Supp. 824 (D. Conn. 1965). However, most persuasive to our case is the reasoning that it would

27 17 be unfair to hold an innocent contractor liable for a dangerous design, when the government was actually responsible. Bynum, 770 F.2d at 566; see also In re Agent Orange Prod. Liab. Litig., 506 F. Supp. at 793. i. M3 acted as an agent of BRO s Gym when it consented to create the SmithSquat 500. The government contract defense supports extending the contract specification defense to strict liability design defect claims when an agency relationship exists. In Yearsley, the court recognized that the governments sovereign immunity was shared by a contractor who acted as an agent on the government s behalf. 309 U.S. at 21. An agency relationship exists when one person consents to act on the behalf and subject to the control of another. In re Torres v. City of Madera, No , 2005 U.S. Dist. LEXIS 34672, 62 (E.D. Cal. 2005). An actual agency exists when the principle employs the agent and the parties have consented to the relationship. Id. at 63. Further, control is a critical characteristic of an agency relationship. Id. at 66. The court in Yearsley bases the government contract defense on agency principals; therefore, if M3 acted as an agent of BRO s gym, it should share the same protections. M3 was an agent of BRO s gym because it consented to act on its behalf by creating the SmithSquat 500 and BRO s gym maintained sufficient control over M3 to create an agency relationship. By contract, BRO s Gym purchased resistance-training equipment from M3. (O, 6.) After Mr. Brozowsky conceptualized the SmithSquat 500, he brought the idea to M3 and they entered into an agreement. (Id. at 11.) M3 consented to act on Mr. Brozowsky s behalf in creating the SmithSquat 500. (Id.) Further, Mr. Brozowsky retained a high degree of control over M3. First, Mr. Brozowsky gave M3 exact specifications with which to comply - changes were forbidden. (Id.) Second, Mr. Brozowsky stated he would go elsewhere with his idea if M3 refused to cooperate. (Id.) BRO s Gym made up the majority of M3 s anticipated annual

28 18 revenue, so it complied. (Id.) Similar to Yearsley, M3 was acting as an agent on behalf of Mr. Brozowsky. While sovereign immunity is not at play, M3 is protected from liability due to the agency relationship and Mr. Brozowsky is the culpable party. ii. The fairness principles supporting the Government Contract Defense are persuasive to adopting the Contract Specification Defense in this case because the facts are almost identical. The First Appellate Circuit reasoned that the government contractor defense was not persuasive because the defense s justification comes from protecting government decisionmaking, especially during and preparing for wartime. (O, 23.) In the cases the Court cited, the overarching justifications are military related. See McKay, 704 F.2d 444. For example, the court in McKay supported the military contractor defense because otherwise, the contractor would pass on the cost of accidents to the government in contract prices. Id. at 449. Further, holding contractors liable would improperly allow the judiciary to make decisions involving the military. Id. Last, it would undermine the nation s ability to push technology limits and encourage manufacturers to work closely with military authorities to develop and test equipment. Id. The government contract defense supports adopting the contract specification defense because its underlying justification is that it would be unfair to hold a manufacturer liable when its only role is performing on a contract with exact specifications. In both Agent Orange and Bynum, the courts included the same analysis as in McKay above. However, both cases had an additional focus. In Agent Orange, the court recognized that tort law seeks to impose liability on a wrongdoer and not on an innocent contractor, whose only role in causing an injury was performance on a contract with specific terms. 506 F. Supp. at 793. In Bynum, the court applied the government contract defense and stated, Principles of fairness dictate that an innocent contractor should not be ultimately liable for a dangerous design when the responsibility lies

29 19 elsewhere. 770 F.2d at 566. In Price, the court recognized the government contract defense as applicable in non-military, strict products liability cases. 603 F. Supp. at When the military context is removed from the equation, there is still one justification: fairness. The government contract defense, which is justified by fairness, supports applying the contract specification defense to M3 s creation of the SmithSquat 500. The government contact defense is persuasive because it is upheld on facts almost identical to our case. M3 performed on a contract with exact specifications regarding how to manufacture the SmithSquat 500. (O, 11.) Much like the fairness principles underlying Agent Orange and Bynum, it would be unfair to hold M3, an innocent contractor, liable for an injury caused by a product Mr. Brozowsky designed. D. If adopted, the Contract Specification Defense would provide a narrow exception to Strict Products Liability Design Defect claims. The Third Restatement is not immune from exceptions and the contract specification defense should be adopted as one. The Restatement provides that legislation has been enacted in many jurisdictions that immunize non-manufacturing sellers or distributors from strict liability. Restatement (Third) of Torts: Prod. Liab. 1, comment e. Liability is not limited to manufacturers of a defective product, rather a seller or distributor will occasionally be responsible for the introduction of a defect in a product, even though it exercised reasonable care in handling or supervising the product in its control. Id. This signifies that the Restatement has, in some cases, considered imposing liability where it would be fair. In this case, fairness lies in holding Mr. Brozowsky rather than M3 liable for injuries resulting from any defect in the SmithSquat 500. The contract specification defense is a small exception to strict products liability and does not impede upon its purpose to hold manufacturers liable for the cost of injuries caused by

30 20 defective products. See Greenman v. Yuba Power Prod. Inc., 59 Cal. 2d 57, 63 (1962). The defense does not apply when a purchaser picks features it wants from what the manufacturer has made available. For example, in Poulter, the defendant was sued for strict products liability because it manufactured an auto-hauling rig that did not contain various safety features. Poulter v. Cottrell, Inc., No. 12 C 01071, 2014 U.S. Dist. LEXIS 85512, 1 (N.D. Ill. 2014). The defendant was a long time manufacturer of these types of rigs and argued that because the buyer picked the safety devices to be included on the rig it purchased, it had designed the rig. Id. at 12. The court concluded that just because the buyer could specify what features it wanted included in its product, did not make it a designer. Id. at Instead, the defendant was the designer and could not escape liability using the contract specification defense just because the buyer chose specific features. Id. at Mr. Brozowsky designed the entire product and M3 had no power or control in altering the design. Unlike Poulter, M3 did not design the SmithSquat 500. (O, 10.) M3 had previously designed and manufactured resistance-training equipment for upper body exercises. (Id. at 7.) However, the SmithSquat 500 design was not based off any of M3 s prior models. (Id. at 8.) Mr. Brozowsky conceptualized the entire machine rather than taking ideas from already existing machines M3 had produced. (Id.) In this case, Mr. Brozowsky and M3 did not work together to create the SmithSquat 500. Because M3 had no power, control, or hand in the design, it is not responsible for defects resulting from the design. Further, the government contract defense is a small exception in strict products liability for design defects, as would be the contract specification defense, if applied. For example, the government contract defense does not protect a contractor from damage resulting from willful tort or negligence when performing work. Holland v. Yellowstone Pipe Line Co., 306 F.2d 621

31 21 (9 th Cir. 1962). Moreover, when the contractor retains power over discretionary decisions relating to the government contract, it will remain liable for consequences of those acts within its discretion. Merritt, Chapman, & Scott Corp v. Guy F. Atkinson Co., 295 F.2d 14, 16 (9 th Cir. 1961). The test that many courts have applied requires that the contractor affirmatively prove that it did not participate, or participated only minimally, in the design of those products shown to be defective. Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 746 (11 th Cir. 1985). These same limitations apply in accepting the contract specification defense for design defect cases, creating a narrow exception. The aim of the contract specification defense is not to make injured party s lives more difficult in suing, but to protect those manufacturers who have done no wrong in the interest of fairness. Much like the government contract defense, the same limitations can be imposed here. Manufacturers who retain discretionary decision-making power or who participate, even minimally, in designing the product, are not qualified to use the defense. Last, the defense does not reach to protect manufacturer s acts of willful tort or negligence in performance. In this case, M3 acted with all reasonable care it owed when it created the SmithSquat 500 to exact specification in carrying out its contract with Mr. Brozowsky. To hold it liable for any design defect goes against the interests of fairness and M3 falls into the small category of manufacturers protected by the contract specification defense. III. THE FIRST APPELLATE CIRCUIT DID NOT ERR IN HOLDING THAT THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT EXCLUDED THE PETITIONER S EXPERT TESTIMONY BECAUSE THE EXPERT WAS QUALIFIED, THE NON-SCIENTIFIC TESTIMONY WAS RELIABLE, AND IT WOULD HAVE ASSISTED THE TRIER OF FACT. In Daubert, the United States Supreme Court emphasized that the inquiry envisioned by the Federal Rule of Evidence ( FRE ) 702 is a flexible one. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594 (1993). The Cincinnatia Rule of Evidence 702 is