No. 2015-0123

________________

IN THE

SUPREME COURT OF CINCINNATIA

JANUARY 30, 2015

________________

MUNAS’ MUSCLE MACHINES, INC.,

Petitioner,

v.

BYRON HUGGINS,

Respondent.

________________

On Writ of Certiorari to the First Appellate

Circuit Court of Cincinnatia

________________

BRIEF FOR PETITIONER

________________

TEAM 1

ATTORNEYS FOR PETITIONER

i

QUESTIONS PRESENTED

I. Whether a non-designing manufacturer who strictly complies with the specifications

from a purchaser-designer may invoke the Contract Specification Defense in suits

based on strict liability design defect.

II. Whether an expert witness, who has over fifteen years of experience as a certified

personal trainer, should be permitted to testify regarding whether a malfunctioning

component on an exercise machine rendered the exercise not reasonably safe.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................................................................................ i

TABLE OF AUTHORITIES ......................................................................................................... iv

OPINIONS BELOW ........................................................................................................................1

STATUTORY PROVISIONS INVOLVED....................................................................................1

STATEMENT OF THE CASE ........................................................................................................1

SUMMARY OF THE ARGUMENT ..............................................................................................7

ARGUMENT AND AUTHORITIES ............................................................................................10

I. M3, AS A NON-DESIGNING MANUFACTURER, IS ENTITLED TO ASSERT A

CONTRACT-SPECIFICATION DEFENSE TO STRICT LIABILITY DESIGN DEFECT

CLAIMS .........................................................................................................................11

A. Strict Liability Defective Design Claims Require Proof of a Certain

Level of Malfeasance by the Manufacturer ..........................................................11

B. The Contract-Specification Defense and Government-Contractor

Defense are Two Separate Defenses With Different Policy

Considerations ......................................................................................................17

C. The Contract-Specification Defense Does Not Undermine the Policy

Behind Strict Liability ..........................................................................................20

D. M3 Complied With the Specifications of Brozowsky’s Design, and is

Accordingly Entitled to Summary Judgment .......................................................25

II. THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING GALLAGHER’S

TESTIMONY ...................................................................................................................26

A. Rule 702 Is a Rule of Admissibility and is Liberally Construed to

Allow Reliable Relevant Testimony to be Admitted at Trial ...............................27

B. Disputes Regarding an Expert’s Qualifications Relate More to the

Credibility of the Expert’s Testimony Than to its Admissibility .........................29

C. Gallagher’s Testimony Regarding the Functional Impact of the Failure

of the Locking Mechanism on the SmithSquat is Relevant and Reliable ............30

1. Gallagher’s testimony is reliable .................................................................31

2. A reasonable layperson will likely not understand the differences

and similarities between the SmithSquat and a free-weight squat ..............33

iii

D. M3 Was Seriously Prejudiced By the Exclusion of Gallagher’s

Testimony .............................................................................................................35

CONCLUSION ..............................................................................................................................35

APPENDIX “A’ .......................................................................................................................... A-1

APPENDIX “B”...........................................................................................................................B-1

iv

TABLE OF AUTHORITIES

Page(s)

UNITED STATES SUPREME COURT CASES:

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) .....................................................................................................17, 18

Daubert v. Merrell Dow Pharms.,

509 U.S. 579 (1993) ................................................................................................... passim

Feres v. United States,

340 U.S. 135 (1950) ...........................................................................................................17

Gen. Elec. Co. v. Joiner,

522 U.S. 136 (1997) ...........................................................................................................10

Kumho Tire Co. v. Carmichael,

526 U.S. 137 (1999) .....................................................................................................27, 28

United States v. Johnson,

481 U.S. 681 (1987) ...........................................................................................................18

UNITED STATES CIRCUIT COURT CASES:

Amorgianos v. Nat'l R.R. Passenger Corp.,

303 F.3d 256 (2d Cir. 2002)...............................................................................................29

Austin v. Clark Equip. Co.,

48 F.3d 833 (4th Cir. 1995) ...............................................................................................14

Cruz-Vazquez v. Mennonite Gen. Hosp., Inc.,

613 F.3d 54 (1st Cir. 2010) ................................................................................................10

Garrison v. Rohm & Haas Co.,

492 F.2d 346 (6th Cir. 1974) ..................................................................................... passim

Hatch v. Trail King Indus., Inc.,

656 F.3d 59 (1st Cir. 2011) ................................................................................................11

Holbrook v. Lykes Bros. S.S. Co.,

80 F.3d 777 (3d Cir. 1996).....................................................................................29, 30, 31

v

Huss v. Gayden,

571 F.3d 442 (5th Cir. 2009) .......................................................................................10, 32

Lauzon v. Senco Products, Inc.,

270 F.3d 681 (8th Cir. 2001) .......................................................................................10, 29

McKay v. Rockwell Int’l Corp.,

704 F.2d 444 (9th Cir. 1983) .............................................................................................17

United States v. Carroll Towing Co.,

159 F.2d 169 (2d Cir. 1947)...............................................................................................13

United States v. Finley,

301 F.3d 1000 (9th Cir. 2002) ...........................................................................................30

United States v. Hanna,

293 F.3d 1080 (9th Cir. 2002) .....................................................................................33, 34

United States v. Laurienti,

611 F.3d 530 (9th Cir. 2010) .............................................................................................29

United States v. Majors,

196 F.3d 1206 (11th Cir. 1999) .........................................................................................34

OTHER CASES:

Beard v. Johnson & Johnson, Inc.,

41 A.3d 823 (Pa. 2012) ......................................................................................................13

Bloemer v. Art Welding Co.,

884 S.W.2d 55 (Mo. Ct. App. 1994) ......................................................................14, 19, 26

Bugosh v. I.U. N. Am., Inc.,

971 A.2d 1228 (Pa. 2009) ..................................................................................................24

Cafazzo v. Cent. Med. Health Servs., Inc.,

668 A.2d 521 (Pa. 1995) ....................................................................................................25

Doe v. Miles Labs., Inc., Cutter Labs. Div.,

675 F. Supp. 1466 (D. Md. 1987)

aff'd. 927 F.2d 187 (4th Cir. 1991) ........................................................................22, 23, 24

Escola v. Coca Cola Bottling Co. of Fresno,

150 P.2d 436 (Cal. 1944) ...................................................................................................24

vi

Ginocchio v. Clark Construction Co.,

10 Cin. 2d 240 (1994) ........................................................................................................12

Housand v. Bra-Con Indus., Inc.,

751 F. Supp. 541 (D. Md. 1990) ........................................................................................14

Hunt v. Blasius,

384 N.E.2d 368 (Ill. 1978) .................................................................................................19

Johnston v. United States,

568 F. Supp. 351 (D. Kan. 1983) .................................................................................17, 20

Michalko v. Cooke Color & Chem. Corp.,

451 A.2d 179 (N.J. 1982)...................................................................................................13

Moon v. Winger Boss Co.,

287 N.W.2d 430 (Neb. 1980).....................................................................11, 15, 16, 22, 25

Narog v. Walker,

317 Cin. 3d 2409 (2004) ....................................................................................................10

Orion Ins. Co. v. United Technologies Corp.,

502 F. Supp. 173 (E.D. Pa. 1980) ......................................................................................14

Prentis v. Yale Mfg. Co.,

365 N.W.2d 176 (Mich. 1984) .....................................................................................12, 22

Ross v. Joseph Chandler & Sons,

10 Cin. 2d 240 (1994) ........................................................................................................30

Ryan v. Feeney & Sheehan Bldg. Co.,

145 N.E. 321 (N.Y. 1924) ............................................................................................18, 19

State v. McNamara,

934 Cin. 3d 251 (1988) ......................................................................................................26

Tincher v. Omega Flex, Inc.,

104 A.3d 328 (Pa. 2014) ........................................................................................12, 21, 24

Weaver v. McKnight,

97 A.3d 920 (Conn. 2014) .................................................................................................29

Weggen v. Elwell-Parker Elec. Co.,

510 F. Supp. 252 (S.D. Iowa 1981) ...................................................................................14

vii

SECONDARY SOURCES:

Anne Bowen Poulin,

Experience-Based Opinion Testimony:

Strengthening the Lay Opinion Rule,

39 PEPP. L. REV. 551 (2012) ..............................................................................................28

David G. Owen,

Special Defenses in Modern Products Liability Law,

70 MO. L. REV. 1 (2005) ..................................................................................11, 12, 18, 19

Brent Nicholas Triff,

Comment, Should A Non-Designing Manufacturer

Be Held Strictly Liable for A Design Defect?

An Approach for California,

33 SAN DIEGO L. REV. 385 (1996) .....................................................................................24

Commander Charles W. Tucker,

The Government Contract Defense in

Products Liability Cases,

34 NAVAL L. REV. 157 (1985) .........................................................................17, 18, 19, 20

Restatement (Second) of Torts § 404 (1965) .................................................................................19

Restatement (Third) of Torts: Prod. Liab. (1998) ..................................................12, 13, 30, 31, 34

RULES:

Fed. R. Civ. P. 56(a). .....................................................................................................................26

Fed. R. Evid. 401 ...........................................................................................................................31

Fed. R. Evid. 702 .....................................................................................................................27, 28

Cin. R. Evid. 702......................................................................................................................26, 27

Cin. R. Evid. 704............................................................................................................................34

1

OPINIONS BELOW

The opinion and order of the Cincinnatia Court of Common Pleas for Cliffton County is

unreported but is set out in the record. R. at 2–3. The opinion of the First Appellate Circuit Court

of Cincinnatia is reported as Huggins v. Munas’ Muscle Machines, Inc., 2014-Cin-9618 (1st

Cir.), and is set out in the record. R. at 11–36.

STATUTORY PROVISIONS INVOLVED

This case involves discussion of several rules of evidence. Specifically, Cincinnatia Rules

of Evidence 401, 702 and 704, codified as Cin. R. Evid. 401, 702, 704. The Cincinnatia rules are

identical to the Federal Rules of Evidence 401, 702, 704, codified as Fed. R. Evid. 401, 702, 704.

This case also involves procedural rules. A question of summary judgment is governed

by Federal Rule of Civil Procedure 56, codified as Fed. R. Civ. P. 56. Interlocutory appeals are

governed by Cincinnatia Rule of Appellate Procedure 4, codified as Cin. R. App. P. 4(F).

Where Cincinnatia law is sparse, interpretations of the federal rules will be presented.

The Federal Rules are reproduced in Appendix “A.” The Cincinnatia Rules are reproduced in

Appendix “B.”

STATEMENT OF THE CASE

I. STATEMENT OF THE FACTS

This dispute arises from an injury Byron Huggins sustained while using the M3

SmithSquat 500™ at BROzowsky’s Gym LLC (BRO’s Gym). R. at 12. Huggins fractured his T3

and T4 vertebrae, and is now a paraplegic. R. at 19.

Founding of M3. Erik Munas originally founded Munas’ Muscle Machines, Inc., in 2008

under the name “Munas Mobility, Inc.,” (2M). R. at 14. 2M specialized in designing cardio

2

equipment such as treadmills, ellipticals, and exercise bicycles. R. at 14. 2M quickly became the

leading dealer of exercise machines throughout Cliffton County and the southern Cincinnatia

Region. R. at 14. Through 2M’s dealings, Munas met Chris Brozowsky. Brozowsky is a

mechanical engineer, certified personal trainer, and owner of BRO’s Gym.

Located in Fairfield, Cincinnatia, BRO’s Gym is a fitness and health club with a current

membership of approximately 200 people. R. at 15. The membership of BRO’s Gym has more

than doubled since Munas and Brozowsky first met; at that time, the gym had about 75 members.

R. at 15. This sharp increase in membership was promoted by a deal struck between Brozowsky

and Munas in 2010, where 2M would design and manufacture all of the cardio equipment for

BRO’s Gym. R. at 15. By purchasing all of the cardio equipment from a local manufacturer,

BRO’s Gym was able to purchase more equipment for a cheaper price than it could if it were to

buy from out-of-state manufacturers. R. at 15.

About one year into the relationship, Brozowsky approached 2M about designing

resistance-training or weight-training equipment. R. at 15. Munas agreed, and 2M began

designing and manufacturing resistance-training machines, such as shoulder presses, dip assists,

lateral pull-down machines, and pectoral fly machines. R. at 15. All of the weight-training

equipment 2M manufactured focused on upper-body strength movements. R. at 15.

2M found success making weight-training equipment, so Munas eventually shifted 2M’s

focus from cardio equipment towards primarily designing and manufacturing weight-training

equipment. R. at 15. He changed the name of the company to “Munas’ Muscle Machines, Inc.,”

(M3) to reflect this shift in focus. R. at 15. BRO’s Gym made up the majority of M3’s

anticipated annual revenue. R. at 18.

3

The M3 SmithSquat 500™. In 2012, Brozowsky approached Munas with a design for a

machine focusing on lower-body strength. R. at 16. Brozowsky, with his engineering

background, had tinkered with the design for years. R. at 16. The design is similar to a normal

Smith machine. R. at 16. A Smith machine has a barbell that rests on the user’s shoulders and

moves up and down between guide rods while the user performs squats. R. at 16. On a typical

Smith machine, hooks attached to the barbell rest on pegs to support the weight while the

machine is not in use. R. at 16. When the user begins to use the machine, she must rotate the

barbell to disengage the hooks from the pegs. R. at 16. When the user is done performing the

exercise, she must rotate the barbell again to re-engage the hooks on the pegs, thereby supporting

the weight so she may safely step away from the machine. R. at 16. Safe use of the Smith

machine requires two individuals, the user, and another person standing by to relieve the user of

the weight if necessary. R. at 16. The second person is called a “spotter”. R. at 16.

Brozowsky understood that a major benefit resistance-training equipment had over free

weights was the lower risk of severe injury, and that using a spotter was unnecessary. R. at 16–

17. Using these type of machines allowed individuals to perform exercises alone. R. at 17.

Brozowsky predicted that incorporating more resistance-training equipment into the gym would

incentivize more people to lift at BRO’s Gym. R. at 17.

The Locking Mechanism. To make a Smith machine safe to use without a spotter,

Brozowsky designed a locking mechanism that would attach to the barbell between the guide

rods and would slide with the barbell as the user squatted and extended her legs. R. at 17. The

mechanism would lock in response to rapid downward movement similar to a seat belt’s locking

when extended too quickly. R. at 17. This rapid downward movement would indicate to the

machine that either the user could not handle the weight applied and would help to prevent

4

severe injury, or that the user had moved away from the machine and would prevent the barbell

from slamming onto the floor. R. at 17. Conversely, when the barbell is moved at a slow and

easy pace, the locking mechanism would not lock unless the user rotated the barbell to engage

the hooks on the pegs, similar to a typical Smith machine. R. at 17.

Brozowsky approached M3 with this design, and requested that M3 manufacture the

SmithSquat in accordance with Brozowsky’s exact specifications. R. at 17. Munas attempted to

provide input regarding the viability of Brozowsky’s design. R. at 17. Brozowsky was adamant

that M3 would manufacture the locking mechanism in strict compliance with his design, or he

would go elsewhere with his idea. R. at 17–18. Fearing the loss of the majority of M3’s annual

revenue—made up by its contract with BRO’s Gym—Munas complied with Brozowsky’s

demand. R. at 18. M3’s engineers built the M3 SmithSquat 500™ (SmithSquat) in strict

accordance with Brozowsky’s design, and the SmithSquat was installed in BRO’s Gym in

February 2013. R. at 18.

The Accident. Byron Huggins is a twenty-nine year old former mail carrier. R. at 18.

During the winter of 2012–2013, when inclement weather struck, he joined BRO’s Gym to take

advantage of the cardio equipment. R. at 18. He began training to run his first marathon, and

accordingly incorporated strength training into his workouts. R. at 18. Shortly after the

SmithSquat was installed, Huggins used it for his squat exercises. R. at 19. For his first set, he

placed 200 lbs. on the SmithSquat and began exercising. R. at 19. He was not using a spotter. R.

at 19. Before he fully extended his legs, he noticed that something did not feel right. R. at 19.

Suddenly, Huggins collapsed to the floor. R. at 19. The SmithSquat’s locking mechanism failed

to respond to the rapid-downward movement of the barbell, which rested on Huggins neck. R. at

5

19. He felt no immediate pain, but could not move his legs. R. at 19. Ultimately, Huggins

fractured his T3 and T4 vertebrae, and became a paraplegic because of the accident. R. at 19.

Amelia Gallagher’s Testimony. M3 retained Amelia Gallagher as an expert witness to

testify regarding the viability of the SmithSquat’s design. R. at 19. Gallagher is a certified

personal trainer (CPT), who received her training through the United States College of Exercise

Medicine (USCEM). R. at 19. To become certified, Gallagher was required to have at least a

high school diploma and to pass a 150-question multiple-choice exam. R. at 19. The exam tests

one’s knowledge regarding anatomical and physiological systems within the human body and

how those systems and structures would react to various forms of exercise. R. at 19–20. To

maintain her certification, she must obtain 12 hours of continuing education credit every two

years, accomplished through a combination of USCEM-sponsored conferences, online courses,

and webinars. R. at 19.

Gallagher has over fifteen years of experience as a personal trainer, having worked in-

house as a personal trainer at gyms and exercise clubs throughout the United States. R. at 8. She

has trained multiple individuals on proper form for upper and lower-body exercises, including

squats. R. at 8. She is experienced in the fields of exercise science, proper use of weight-training

equipment, and the effects of exercise on the musculoskeletal system of the human body. R. at 8.

Further, she has personal knowledge of the M3 SmithSquat 500™. R. at 8.

In her affidavit, Gallagher opined that the failure of the locking mechanism would cause

machine to operate no differently than if an individual were performing squats with a simple

barbell. R. at 8. She further opined that free-weight squat exercises, when performed with proper

form, are safe and are often performed without spotters. R. at 8. She concluded that because the

failure of the locking mechanism would have rendered use of the M3 SmithSquat 500™ no

6

different from performing squats with a free-standing barbell, that, therefore, the failure of the

locking mechanism did not render the SmithSquat unreasonably dangerous. R. at 9.

II. NATURE OF THE PROCEEDINGS

The Court of Common Pleas. Byron Huggins sued M3 for strict products liability design

defect, and BRO’s Gym, LLC for strict products liability failure-to-warn under state law. R. at

12. Huggins settled with BRO’s Gym, but maintained this action against M3 for design defect.

R. at 12. At the close of discovery, M3 moved for summary judgment on two grounds: First,

contending that it constructed the M3 SmithSquat 500™ in accordance with specific

requirements provided by Chris Brozowsky and cannot be held liable for any injury resulting

from the product’s allegedly defective design pursuant to the common law contract-specification

defense. R. at 12. Alternatively, M3 argued that Huggins failed to establish a strict products

liability claim for design defect, as he cannot prove that that alleged defect rendered the product

not reasonably safe. R. at 12. On this second point, M3 planned to offer the testimony of

Gallagher as an expert witness. R. at 12.

Judge Leech denied M3’s motion for summary judgment, reasoning that the contract-

specification defense does not apply in a strict liability claim. R. at 2. Further, Judge Leech

granted Huggins’ motion in limine to exclude the expert testimony of Gallagher. R. at 3.

Subsequently, M3 requested leave for an interlocutory appeal from the court’s denial of

M3’s motion for summary judgment. R. at 4. As the question of the contract-specification

defense is a question of first impression in Cincinnatia, Judge Leech granted M3’s motion, in

accordance with Cincinnatia Rule of Appellate Procedure 4. R. at 4–5; Cin R. App. P. 4(F). In

the interest of judicial economy, to avoid the possibility of multiple appeals, the court also

certified the question of its ruling on Gallagher’s testimony for interlocutory appeal. R. at 5.

7

The Court of Appeals. The First Appellate Circuit Court of Cincinnatia heard M3’s

interlocutory appeal. R. 11–36. It affirmed-in-part, and reversed-in-part. R. at 11. Specifically,

the court held that the contract-specification defense does not apply to strict liability design

defect claims. R. at 11. It also held that the trial court erred in excluding the expert testimony of

Gallagher. R. at 11.

SUMMARY OF THE ARGUMENT

This claim is against a non-designing manufacturer for a design defect. The first issue is a

threshold issue and a question of first impression. If this Court allows the contract-specification

defense to apply in strict liability design defect claims, it will be outcome determinative. The

second issue is whether the defendant’s expert witness should be allowed to testify.

I.

The trial court improperly ruled that the contract-specification defense is only applicable

to claims based on negligence. The overwhelming weight of authority recognizes that this

defense applies to design defect claims, even under a theory of strict liability. Whether

Cincinnatia will permit the contract-specification defense in suits based on strict liability is a

question of first impression for Cincinnatia. This Court should reverse the lower court’s ruling

and declare that the contract-specification defense may apply to strict liability claims for non-

designing manufacturers.

Strict liability claims, although rhetorically labeled as “strict,” still require a showing of

fault. After all, strict liability is not absolute liability. Specifically, for strict liability design

defect claims, the plaintiff must show that a design was defective. To show it is defective, most

jurisdictions, and the Restatement (Third) of Torts: Products Liability, require that the plaintiff

demonstrate that an alternative design was feasible based on a risk-utility test. Demonstrating

8

that a manufacturer should have designed the product differently implicitly requires a showing of

malfeasance on behalf of the manufacturer. Where there is absolutely no misconduct, the

manufacturer should not be punished.

The contract-specification defense provides that when a non-designing manufacturer

complies with the design specifications provided by the buyer, the non-designing manufacturer is

not liable for damages flowing from a design defect unless the design is such that a reasonable

manufacturer would not follow it. Should this Court deny the applicability of the defense, it will

cause a non-designer being held liable for a design defect—a wholly illogical result.

The lower court decided this issue by looking to the government-contract defense. That

defense is predicated on two ideas: shared sovereign immunity, and that the judiciary should not

second-guess military judgments. These concepts admittedly are not part of the contract-

specifications defense, but that is not reason enough to deny its applicability to strict liability

claims, as the lower court concluded.

Here, M3 complied with the specifications provided by Brozowsky. Further, Huggins has

produced no evidence that the specifications were such that a reasonable manufacturer would

refuse to follow the design. Thus, M3 is entitled to judgment as a matter of law.

II.

Gallagher’s testimony should be admitted at trial. Her testimony is relevant to the issue at

hand, and she is qualified to render an expert opinion. The court below was correct in its

judgment that the trial court abused its discretion by excluding the testimony.

Cincinnatia Rule of Evidence 702 is a rule of admissibility and is liberally construed to

allow reliable, relevant testimony to be given at trial. The expert’s testimony need not be

scientific in nature to be admitted; it may be based on any type of specialized knowledge. Indeed

9

the rule is broadly phrased, incorporating not only experts in the strictest sense of the word, but

including a variety of witnesses with various types of expertise. Experts are permitted wide

latitude for their basis of knowledge because juries should be exposed to any relevant evidence.

Disputes regarding an expert’s qualifications relate more to the credibility of the

testimony than its admissibility. This follows the adversarial nature of our legal system. So long

as the testimony is relevant and reliable it should be admitted. Opponents of the testimony may

attack the witness’s qualifications or theories to undermine their credibility in the eyes of the

jury. Vigorous cross-examination and introducing contrary evidence are the appropriate means to

counter a witness’s testimony.

Gallagher’s testimony regarding the functional impact of the failure of the locking

mechanism on the SmithSquat is relevant and reliable. She has over 15 years of experience as a

certified personal trainer. She is personally familiar with both traditional Smith machines and the

SmithSquat. Her testimony is that the failing of the locking mechanism did not render the

SmithSquat unreasonably dangerous. Rather, the only effect was that the SmithSquat turned into

the functional equivalent of a free-weight squat. Free-weight squats are performed in gyms

across the nation, often without spotters. Because the malfunction rendered the SmithSquat no

different from a safe exercise, it did not cause it to be unreasonably dangerous.

M3 was seriously prejudiced by the exclusion of Gallagher’s testimony. Her testimony

refuted a necessary element of Huggins claim: that the malfunction rendered the SmithSquat not

reasonably safe. The trial court excluded her testimony deeming it not relevant because it was

not based on scientific knowledge. That ruling is an abuse of discretion because under Rule 702,

the testimony need not be based on scientific knowledge. Further, her testimony is relevant to the

10

question in this case. Thus, the lower court was correct in finding that the trial court abused its

discretion.

This Court should affirm-in-part and reverse-in-part. Specifically, this Court should

reverse the lower court’s judgment on the contract-specification defense. This Court should

affirm the lower court’s judgment on Gallagher’s expert testimony.

ARGUMENT AND AUTHORITIES

This interlocutory appeal raises two issues. The first issue is whether the contract-

specification defense may apply to product liability claims based on a theory of strict liability.

This is a question of first impression in the State of Cincinnatia. Under Cincinnatia law,

decisions on questions of first impression are reviewed de novo. Narog v. Walker, 317 Cin. 3d

2409, 2413 (2004).

The second issue concerns an evidentiary ruling by the trial judge, excluding the expert

testimony of Amelia Gallagher. Excluding expert testimony is reviewed for abuse of discretion.

Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997). Although a district court has substantial discretion

to make admissibility determinations on expert testimony, “that discretion is not without

bounds.” Cruz-Vazquez v. Mennonite Gen. Hosp., Inc., 613 F.3d 54, 57 (1st Cir. 2010). Where

the proponent of the expert testimony has proved its admissibility by a preponderance of the

evidence, it should be admitted. Lauzon v. Senco Products, Inc., 270 F.3d 681, 686 (8th Cir.

2001) (citing Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592 n.10 (1993)). A reviewing

court will overturn an incorrect ruling by the trial judge unless the error was harmless. Huss v.

Gayden, 571 F.3d 442, 452 (5th Cir. 2009).

11

I. M3, AS A NON-DESIGNING MANUFACTURER, IS ENTITLED TO ASSERT A CONTRACT-

SPECIFICATION DEFENSE TO STRICT LIABILITY DESIGN DEFECT CLAIMS.

A non-designing manufacturer, logically, cannot have liability imposed on it for a design

defect. To permit that finding would be worse than merely illogical; it would be unjust. The trial

court improperly denied M3’s motion for summary judgment, deciding that the contract-

specification defense does not apply to strict liability claims. R. at 2. In doing so, it has ignored

the weight of precedent and set Cincinnatia jurisprudence on a dangerous course. This Court

should take this opportunity to clarify that non-designing manufacturers may use the contract-

specification defense as a shield from liability for design defects.

M3 built the SmithSquat in strict compliance with Brozowsky’s design. R. at 17–18. Due

to a design defect—not a manufacturing defect—Huggins was injured. R. at 19. He settled his

suit against the machine’s designer. R. at 12. However, he is pursuing his defective-design claim

against a non-designer, M3. The contract-specification defense applies in both negligence and

strict liability actions for defective design. Garrison v. Rohm & Haas Co., 492 F.2d 346, 351

(6th Cir. 1974) (applying Kentucky law). Where a non-designing manufacturer diligently

complies with the design specifications and those specifications are not so obviously defective

that a reasonable manufacturer would not follow them, the manufacturer is not liable for

damages. Id.; See also, Moon v. Winger Boss Co., 287 N.W.2d 430, 434 (Neb. 1980).

A. Strict Liability Defective Design Claims Require Proof of a Certain Level of

Malfeasance by The Manufacturer.

The contract-specification defense applies to design defect claims, regardless of the

underlying theory of liability. Hatch v. Trail King Indus., Inc., 656 F.3d 59, 69 (1st Cir. 2011).

Many courts have faced the question of whether a non-designing manufacturer should be held

strictly liable for a design defect it had no control over, and no reason to second-guess. David G.

12

Owen, Special Defenses in Modern Products Liability Law, 70 MO. L. REV. 1, 4 (2005). The

majority of those courts have recognized that, even in a strict liability suit, a manufacturer who

does nothing more than follow specifications provided by the buyer should not be liable, absent

of an obvious defect, if the design proves defective. Id. at 5.

This is because there is an element of malfeasance by the manufacturer required for strict

liability to apply. Tort law is predicated upon the idea of the breach of a duty, and strict liability

is no exception. Tincher v. Omega Flex, Inc., 104 A.3d 328, 384 (Pa. 2014). “To demonstrate a

breach of duty in a strict liability matter, a plaintiff must prove that a seller (manufacturer or

distributor) placed on the market a product in a ‘defective condition.’” Id. Thus, the term

“defective,” is a legal conclusion that must be established. Id. Establishing a manufacturing

defect in a product is usually accomplished by evaluating the product against the manufacturer’s

design. Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 182 (Mich. 1984). However, in defective

design cases, establishing the fact of a defect is not so straightforward. Id. In these cases, the

“court is called upon to supply the standard for defectiveness.” Id. Generally, the defective

condition is established by a showing that the manufacturer reasonably should have designed the

product in a safer way. Id. Such a standard implicitly shows that the manufacturer failed to act in

a desirable way—that is, there was misconduct by the manufacturer. “In design cases the

character of the product and the conduct of the manufacturer are largely inseparable.” Tincher,

104 A.3d at 371.

The Restatement (Third) of Torts: Products Liability recognizes that a strict liability

claim for design defect requires a showing of misconduct on behalf of the manufacturer.1

Restatement (Third) of Torts: Prod. Liab. § 2(b) cmt. a (1998). Under the Restatement, while

1 This Court adopted the Restatement (Third) of Torts: Products Liability in Ginocchio v. Clark

Construction Co., 10 Cin. 2d 240 (1994).

13

liability is rhetorically labeled as strict, it is couched in terms that sound in negligence. See Id.

(“Subsection (b) . . . which impose[s] liability for products that are defectively designed . . . and

are thus not reasonably safe, achieve the same general objectives as does liability predicated on

negligence.”). The preeminent test used to determine whether a manufacturer should be strictly

liable, under the Restatement and the majority of precedent, is a risk-utility balancing test

determining whether the manufacturer should have adopted an alternative design. Id. (“While the

strict liability standard . . . is the superior standard for assessing liability for harm caused by

manufacturing defects, the “risk-utility” balancing of costs and benefits . . . is the proper method

of defining defects in design. . . .” (emphasis added)); See, e.g., Beard v. Johnson & Johnson,

Inc., 41 A.3d 823, 836 (Pa. 2012) (reaffirming the risk-utility balancing test as the proper

standard to determine design defect under strict liability claim); but see, Michalko v. Cooke

Color & Chem. Corp., 451 A.2d 179, 183 (N.J. 1982).2

In fact, the Restatement describes Learned Hand’s famous B<PL negligence formula,

from United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947), as illustrating the

proper considerations for strict liability design defect. Restatement (Third) of Torts: Prod. Liab. §

2(b) cmt. a. Under Judge Hand’s formula, where the utility of the design outweighs the risk of

harm, the manufacturer should not be held liable. The Restatement favors such an approach even

under strict liability. This embodies the sentiment that while liability may be strict, some

malfeasance on behalf of the manufacturer should still be present before liability attaches.

2 The New Jersey court explained in Michalko that a manufacturer could only be held strictly

liable when it feasibly could have incorporated a safety device, but failed to do so. 451 A.2d at

183. The court concluded that only the product is the focus of the court’s inquiry. Id. However,

the court stated, “strict liability attaches if the product’s utility is outweighed by the magnitude of

the risk involved in its use.” Id. This explanation affirms the Restatement’s view that some

culpability on behalf of the manufacturer is required under strict liability design defect.

Ultimately, Michalko’s conclusion is in tension with its own rationale.

14

Admittedly, that notion does not precisely address the question in this case. However, that

underlying principle is instructive here.

Under the CSD, a non-designing manufacturer is not liable for the damage from a

defective design, unless the design was so defective as to put the manufacturer on notice of the

hazard. Garrison, 492 F.2d at 351. Where the manufacturer is put on notice of a defect—that is,

if the manufacturer knows or has reason to know of the defect—but finishes producing the

product, then the manufacturer committed misconduct. Thus, the CSD will not apply, and the

manufacturer should be held liable. However, where the non-designing manufacturer merely

fulfills its contract, unaware of a defect in design, but damage results from such a defect, the

CSD shields the manufacturer from liability, even under a strict liability regime. This result is

follows the Restatement (Third) of Torts and with the majority of courts to have considered this

question. See, e.g., Austin v. Clark Equip. Co., 48 F.3d 833, 837 (4th Cir. 1995) (applying

Virginia law); Garrison, 492 F.2d at 351; Housand v. Bra-Con Indus., Inc., 751 F. Supp. 541,

545 (D. Md. 1990); Weggen v. Elwell-Parker Elec. Co., 510 F. Supp. 252, 254 (S.D. Iowa 1981);

Orion Ins. Co. v. United Technologies Corp., 502 F. Supp. 173, 176 (E.D. Pa. 1980); Bloemer v.

Art Welding Co., 884 S.W.2d 55, 56 (Mo. Ct. App. 1994) (“[A] contractor's compliance with its

customer's plans and specifications is, with limited exceptions not applicable in this case, a

complete defense to strict liability and negligence claims based on defective design.”).

In Garrison, the Sixth Circuit Court faced a situation where a plaintiff brought a claim for

strict liability design defect against a non-designing manufacturer for his injuries. 492 F.2d at

347. Mr. Garrison, the plaintiff, was injured when a dolly, manufactured by Orangeville

Manufacturing Co., tipped over on to him at work. Id. Orangeville did not design the dolly;

rather, Garrison’s employer designed the dolly. Id. Upon receiving the specifications,

15

Orangeville built the dolly in accordance therewith, and shipped the completed product to

Garrison’s employer. Id. At trial, Orangeville argued that it could not be held liable for a design

defect where it had no input on the design, but conformed to contract-specifications. Id.

Applying Kentucky law, the federal court reasoned there is no practical difference

between the standard of conduct for negligence and that for strict liability. Id. at 351. In either

case, the applicable standard is one of reasonable care. Id. Further, a manufacturer is not required

to insure that its product is “incapable of producing injury.” Id. Ultimately, the court stated that

the only party that could be responsible for a design defect was the designer, Garrison’s

employer. Id. “To hold Orangeville liable for defective design would amount to holding a non-

designer liable for design defect. Logic forbids any such result.” Id.

The Nebraska Supreme Court reached a similar conclusion. Moon, 287 N.W.2d at 434.

There, the plaintiff worked on a cleanup crew, near an assembly line at a meat processing plant.

Id. at 431. He fell, entangling his arm in a chain as it moved into a sprocket wheel at the end of a

conveyor belt. Id. Unfortunately, because there were no safety screens guarding these “pinch

points,” his arm was severely injured. Id. The processing plant contracted with Winger Boss

Company, Inc., (WB) to manufacture the conveyor system. Id. WB manufactured the system in

strict compliance with the specifications supplied by the processing plant. Id. Further, WB

requested to inspect the intended installation site for the system to ensure the design was viable.

Id. at 432. The processing plant denied WB’s request. Id. The court reasoned that because WB

was not involved in the design of the conveyer system in any way, it was not liable for design

defect. Id. at 434.

The court recognized that a plaintiff could bring design defect claims based on

negligence or strict liability. Id. at 432. However, the question presented by Moon—whether

16

liability can attach under either theory to a manufacturer who merely follows the specifications

provided by the purchaser—was a question of first impression for Nebraska. Id. The court

studied comment “a” to the Restatement (Second) of Torts § 404, stating that a manufacturer was

not required to “sit in judgment” of the specifications provided by his employer. Id. at 433.

Finding that principle compelling, regardless of the theory of liability, the court announced

Nebraska’s rule regarding design defect claims against non-designing manufacturers:

a manufacturer is not liable for injuries to a user of a product

which it has manufactured in accordance with plans and

specifications of one other than the manufacturer, except when the

plans are so obviously, patently, or glaringly dangerous that a

manufacturer exercising ordinary care under the circumstances

then existing would not follow them.

Id. at 434. The court emphasized the fact that WB had no input on the design. Id. Even when WB

sought to inspect the intended location for the system to ensure the system’s viability, it was

denied. Id. at 434. A manufacturer cannot justly be held liable under those circumstances.

M3’s situation is similar. Brozowsky approached M3 with a specific design. R. at 17.

Despite Munas’ attempts to provide input and criticism regarding the viability of the

SmithSquat’s design, Brozowsky refused. R. at 17. WB faced this same problem in Moon, 287

N.W.2d at 434, and so did Orangeville in Garrison, 492 F.2d at 347. Brozowsky gave M3 the

ultimatum that either it could manufacture the SmithSquat in strict accordance with the

specifications, or he would take his business elsewhere. R. at 17–18. M3’s only options were to

refuse the contract altogether, thereby risking the loss of the majority of its revenue, or comply.

R. at 18. M3 had no real alternative but to accept the contract and comply with its specifications.

To hold M3 liable here, would be to hold a non-designing manufacturer liable for a

design defect. As the Garrison court explained, “Logic forbids any such result.” 492 F.2d at 351.

17

This Court should side with logic and the majority of jurisdictions in holding that the CSD can

apply to a strict liability claim for defective design. Accordingly, M3 is not liable.

B. The Contract-Specification Defense and Government-Contractor Defense are

Two Separate Defenses With Different Policy Considerations.

The contract-specification defense (CSD) and the government-contract defense (GCD)

are “two separate defenses that are based on separate principles and applicable in two ranges of

distinct but overlapping factual situations.” Johnston v. United States, 568 F. Supp. 351, 353 (D.

Kan. 1983). However, “these two theories are easily confused.” Commander Charles W. Tucker,

The Government Contract Defense in Products Liability Cases, 34 NAVAL L. REV. 157, 158

(1985). The lower court failed to appreciate the distinction between the two defenses. R. at 23.

To be clear, M3 argues that the CSD should apply to strict liability design defect claims in

Cincinnatia, as it does in the majority of other jurisdictions, not that this Court should expand the

GCD to private party contracts.

The GCD provides that when a manufacturer contracts with the federal government, the

manufacturer will not be liable for design defects when the government approved “reasonably

precise specifications, the equipment conformed to those specifications,” and the design is not so

defective that a reasonably competent contractor would realize the defect. Boyle v. United

Technologies Corp., 487 U.S. 500, 512 (1988). This defense is primarily employed in cases

involving the United States military. See, e.g., Boyle, 487 U.S. at 502 (1988); McKay v. Rockwell

Int'l Corp., 704 F.2d 444 (9th Cir. 1983). It is a necessary corollary to the Feres Doctrine, which

limits the United States government’s liability for injuries to service members. Feres v. United

States, 340 U.S. 135 (1950).

18

The Feres Doctrine bars suits brought by service members because those claims, “if

generally permitted, would involve the judiciary in sensitive military affairs at the expense of

military discipline and effectiveness.” United States v. Johnson, 481 U.S. 681, 690 (1987). The

GCD is based on the premise that a “public contractor should be able to share the sovereign’s

immunity from liability if the contractor follows the plans, specifications and directions of the

governmental authority.” Tucker, supra, at 158; see also, Boyle, 487 U.S. at 512. Given these

underlying considerations, this defense is only applicable when the contract is between a

manufacturer and a government agency. Such is not the case here.

On the other hand, the CSD applies when the contract is between private parties. Under

this defense, a manufacturer is not liable for damages caused by a “design defect in products it

manufactures in accordance with plans and specifications supplied by the purchaser, unless the

design is obviously defective.” Owen, supra, at 3. When a contractor follows the buyer’s

specifications regarding how to build a product, and the contractor has no reason to know that

the specifications are unsafe, the contractor should not be liable for damage resulting from a

defective design.

An early case from New York explained, “A builder or contractor is justified in relying

upon the plans and specifications which he has contracted to follow, unless they are so

apparently defective that an ordinary builder of ordinary prudence would be put upon notice that

the work was dangerous and likely to cause injury.” Ryan v. Feeney & Sheehan Bldg. Co., 145

N.E. 321, 321–22 (N.Y. 1924). Ryan involved a contract with a government agency to construct

building and a canopy. Id. at 321. The builder fully complied with the specifications provided by

the architect. Id. The canopy ultimately collapsed because the iron supports were not properly

19

spaced; an error with the design of the canopy. Id. The collapse resulted in the death of Edward

Ryan. Id. The court held that the contractor was not liable for the design defect. Id.

Despite involving a contract with a government agency, the court did not resort to the

theory of “shared immunity” to protect the contractor from the negligence claim. Rather, the

court focused on the fact that the errant design was one that the designer—the government’s

architects and engineers—should have caught. Id. Further, the design was not so obviously

defective as to put a contractor of “average skill and ordinary prudence” on notice of the defect.

Id. It is illogical and inequitable to charge a non-designing contractor with liability for a design

defect that the contractor had no control over, and did not have reason to suspect. “A contractor

is not required to sit in judgment on the plans and specifications or materials provided by his

employer.” Restatement (Second) of Torts § 404 cmt. a (1965).

A manufacturer is usually not negligent in following design specifications provided by a

purchaser pursuant to a contract. Owen, supra, at 4 (citing Hunt v. Blasius, 384 N.E.2d 368 (Ill.

1978)). This is a widely accepted premise, as recognized in the Restatement (Second) of Torts §

404. However, the CSD is not limited in application to negligence suits. The majority of courts

faced with this issue have held that the CSD applies to strict liability design defect claims as

well.

The GCD and CSD have some similarities. Both defenses are predicated on the

contractor’s compliance with specifications provided in the contract and each can apply in public

works situations. Tucker, supra, at 158. Both apply to shield manufacturers from liability for

suits based on negligence. Id. Additionally, both defenses shield manufacturers in suits based on

strict liability design defect. Bloemer, 884 S.W.2d at 56. Due to these similarities, courts have

20

not always been clear in distinguishing which one it was applying to a particular case. Tucker,

supra, at 158. Courts and scholars alike have confused the two defenses.

The lower court was correct when it pointed out that the policy considerations supporting

the GCD’s applicability to strict liability are missing from the CSD. R. at 24–25. However, The

CSD is an entirely different defense, with separate policy considerations. Johnston, 568 F. Supp.

at 353. The fact that the underlying rationale for the CSD differs from the GCD is not dispositive

of the question presented, as the lower court seemed to reason.

C. The Contract-Specification Defense Does Not Undermine the Policy Behind

Strict Liability.

Strict liability is often justified by the theory of enterprise liability. The lower court

reasoned that the CSD could not apply in strict liability because of the policy underlying

enterprise liability.3 R. at 25. However, the lower court failed to recognize that permitting the

CSD to apply in strict liability does not undermine enterprise liability at all.

The lower court listed four policy reasons for disallowing the CSD in strict liability: (1)

manufacturers should compensate injured consumers when defective products cause harm; (2)

strict liability encourages manufacturers to improve product safety; (3) strict liability helps to

ensure that the prices of products will reflect their true cost to society; and, (4) spreading the cost

of compensating those injured among the consuming public by means of the pricing mechanism.

R. at 25. The CSD will not adversely affect any of these considerations and should be permitted

in strict liability.

The first rationale focuses on the moral culpability of a manufacturer who places

defective products on the market. Companies should compensate injured consumers when their

3 Indeed, the lower court merely listed four policy justifications for their decision without

analyzing any of them for the effect of allowing the CSD in strict liability. R. at 25.

21

product is defective in design. Yet when the manufacturer has no control over the design of the

product, it is effectively compensating injured consumers for a different entity’s mistake. The

manufacturer is relying on the viability of the design from the designer-purchaser. The moral

culpability lies with the designer-purchaser for design defects. So long as the defect is not one a

reasonable manufacturer would catch, the non-designing manufacturer should not be held to

answer for the defect. Garrison, F.2d at 351.

Second, while strict liability encourages manufacturers to improve product safety, this

rationale has no bearing when the manufacturer does not have control over the product’s design.

Disallowing the CSD in strict liability will not further the interest of deterrence. The reason is

obvious: once a non-designing manufacturer takes every precaution while following the buyer’s

design, there is nothing left to deter. Yet the manufacturer will still be held strictly liable for any

design defects if the product causes an injury. The deterrence value, without the CSD, will only

compel a non-designing manufacturer to take reasonable precautions. That is the limit of the

deterrence because once the precautions become unreasonable from a business standpoint, a

manufacturer will not pursue additional safeguards. Where the manufacturer could have done

nothing more, it will still be punished for its employer’s errant design. This demonstrates the

“deterrent inefficacy of a theory of liability for unknowable risks, short of exiting the market.”

Tincher, 104 A.3d at 404. In short, the only deterrent value left is forcing the manufacturer to

exit the market. Forcing a company to exit a given market for the mistake of another is unjust.

The contract-specification defense provides a better alternative. It carries the same

amount of deterrence—compelling the manufacturer to take reasonable precautions—while not

punishing it for factors outside of its control. Allowing manufacturers to invoke the CSD will

enhance deterrence, because if it is vigilant, it may escape liability. Disallowing the CSD results

22

in a manufacturer being found liable even where it took ample precautions. After a certain point,

a manufacturer has little motivation to take precautions because regardless of whether it does or

does not, it will be held to account for the mistake of another. “A greater incentive to design

safer products will result from a fault system where resources devoted to careful and safe design

will pay dividends in the form of fewer claims and lower insurance premiums for the

manufacturer with a good design safety record.” Prentis, 365 N.W.2d at 185. Under the CSD, a

non-designing manufacturer, who takes reasonable precautions, where the defect was not one

that the manufacturer should have caught, may invoke the defense to avoid liability for a mistake

made by its employer. The manufacturer will only be liable when the design defect is one that a

manufacturer exercising ordinary prudence would not follow. Moon, 287 N.W.2d at 434. This is

a just result, and a logical one.

Third is the idea that products should reflect their “true cost” to society. Every product

has both its direct cost and externalities. Doe v. Miles Labs., Inc., Cutter Labs. Div., 675 F. Supp.

1466, 1471 (D. Md. 1987) aff'd. 927 F.2d 187 (4th Cir. 1991). Direct cost refers to the price a

consumer is willing to pay for the product. Id. Externalities are those unseen costs of a product;

in the context of strict liability, the externality is often injury or pollution. Id. Judge Ramsey

explained the correlation between these costs as they influence the economic market, and strict

liability:

When the price of an item does not reflect both its direct costs and

its externalities, the price will be lower than its actual cost. This

lower price will stimulate an inefficient allocation of resources, for

persons will be encouraged to buy more of the product than they

might if they were paying its true price. Society thus may increase

the consumption of the very goods that . . . are defective, and thus

have indirect accident costs. Strict products liability shifts the cost

back to manufacturers, who will then reprice the goods to reflect

their actual costs. Strict products liability therefore affords society

a mechanism for a rational allocation of resources.

23

Id. This is a primary motivation for the advent of strict products liability. Id. Judge Ramsey’s

perspective makes good sense for the entity that has control over the design and marketing of a

product. However, regarding liability of a non-designing manufacturer, employed by an entity

that is both the designer and the marketer, this logic carries no weight.

There is still a notion of fault implicit within this premise. It seeks to hold the entity

reaping the benefits of not covering the costs of externalities liable. In a situation involving a

contract between a designer-purchaser and a non-designing manufacturer, the entity that reaps

the benefits of not paying for externalities is the designer-purchaser. That entity in this situation

is BRO’s Gym. It is the one responsible for designing the locking mechanism, and for marketing

its use to the public. R. at 17–18. M3 had no part in either of those processes. In fact, BRO’s

Gym expressly prohibited M3 from modifying the design. R. at 17. BRO’s Gym directly

interacted with the ultimate consumers and therefore was in the best position to assess the risks

and raise the cost of using the gym. See, Miles Labs., 675 F. Supp. at 1471. By doing that, it

could cover the negative externality of the SmithSquat where M3 does not have that ability.

Allowing a non-designing manufacturer to employ the CSD does not degrade this

rationalization for strict liability. The designer-purchaser is the party that has the means to

interact with the consumer and set prices to reflect their true cost. Where a non-designing

manufacturer is not at fault for a design defect, the designer-purchaser is at fault. Permitting the

former to invoke the CSD will not foreclose from a plaintiff all avenues of recovery; it will only

narrow the focus of the cause of action to those who actually bear responsibility for the cause of

the injury. Here, that is BRO’s Gym. R. at 17–18. If blame is placed where blame is due—on the

designer-purchaser—the individual may still recover for their injuries, and the cost of the product

will still represent its true price.

24

The fourth rationale is that the cost of a product’s externalities should be spread among

the consuming public. R. at 25. This idea is closely related to the true-cost premise, for if a

product represents its true cost, then the cost of its externalities are spread among the consuming

public. See, Miles Labs., 675 F. Supp. at 1471. Once again, this approach is sound when applied

to the normal context of strict liability but this is not that situation. Usually a company designs a

product, manufactures it, and places it on the market. In that situation, “the risk of injury can be

insured by the manufacturer and distributed among the public as a cost of doing business.”

Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436, 441 (Cal. 1944). Here, the focus is on

a party that neither designed, nor marketed the product.

In Escola, the manufacturer could absorb the cost incrementally. See generally, id. Coca

Cola could increase the price per bottle of its product minimally to cover the costs of potential

injuries. Id. However, non-designing manufacturers usually engage in significantly fewer

transactions, making incremental recovery nearly impossible. Brent Nicholas Triff, Comment,

Should A Non-Designing Manufacturer Be Held Strictly Liable for A Design Defect? An

Approach for California, 33 SAN DIEGO L. REV. 385, 415 n.113 (1996). Take this case as an

example: M3’s entire consuming public for this product is the one entity responsible for

designing and marketing the SmithSquat, BRO’s Gym. The ability for M3 to incrementally

increase the price of this product does not exist because this is not a high-volume manufacturer,

especially regarding this product.

To impose liability on M3 for Brozowsky’s design will not result in cost spreading. The

result would be a “judicially imposed mandatory insurance scheme.” Tincher, 104 A.3d at 373

(citing Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228, 1234 (Pa. 2009) (Saylor, J., dissenting)).

Again, there is no general mandate that a manufacturer insure that its product is completely

25

“incapable of producing injury.” Garrison, 492 F.2d at 351. Imposing liability for no other

reason than that the non-designing manufacturer might have the ability to pay damages is grossly

inequitable and has no place in this nation’s jurisprudence. See Cafazzo v. Cent. Med. Health

Servs., Inc., 668 A.2d 521, 526 (Pa. 1995). Indeed, Huggins initially sued BRO’s Gym in

addition to M3. R. at 12. He settled his claim against the product’s designer, BRO’s Gym. R. at

12. Now, Huggins is seeking another bite of the apple.

Instead of imposing liability for no other reason than the potential for deep pockets, this

court should permit non-designing manufacturer’s to invoke the CSD. In doing so, each policy

consideration supporting the imposition of strict liability will still have full force and effect.

Additionally, it will signify Cincinnatia’s dedication to logic and justice; a party should not be

held liable for events entirely outside of its control, and that it did not gain from. Once it is clear

that the defect has to do with the design, the designer should be the one on the hook. That is the

effect of the CSD.

D. M3 Complied With the Specifications of Brozowsky’s Design, and is Accordingly

Entitled to Summary Judgment.

The contract-specification defense provides that a non-designing manufacturer is not

liable for injuries to a user of a product when it was manufactured in accordance with plans and

specifications provided by another, except when the plans are so dangerous that a manufacturer

exercising ordinary care would not follow them. Moon, 287 N.W.2d at 434. This defense has two

parts: first, the non-designing manufacturer must show there was a contract with design

specifications between it and the purchaser, and that it followed those specifications. Id. Second,

once the defendant has established the existence of and compliance with the contract, the burden

shifts to the plaintiff to show that the design defect was so dangerous that a reasonably prudent

26

manufacturer would not have followed the design. Bloemer, 884 S.W.2d at 59 (discussing the

burden shift to the plaintiff once the defendant establishes both the contract and compliance).

A moving party is entitle to summary judgment when it shows there is no genuine dispute

on any material fact. Fed. R. Civ. P. 56. As the record shows, there is no genuine issue of fact

regarding to M3’s compliance with Brozowsky’s specifications. R. at 17–18. In such situations,

“it is incumbent upon the opponent to the motion for summary judgment to come forward with

proof that would support a finding that the specifications provided were so obviously deficient

that a competent” non-designing manufacturer would have recognized the danger. Bloemer, 884

S.W.2d at 59. Because Huggins has put forth no evidence that the specifications were so

glaringly dangerous that an ordinary manufacturer would not follow them, M3 is entitled to

summary judgment.

II. THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING GALLAGHER’S

TESTIMONY.

The trial court abused its discretion when it granted Huggins’ motion in limine to exclude

the testimony of Amelia Gallagher. With no discussion, the judge concluded that Gallagher was

“not qualified” to testify as an expert witness, and her testimony was “not relevant because it

[was] not based on scientific knowledge and will not assist the trier of fact.” R. at 3. In citing that

rationale for excluding Gallagher’s testimony, the trial court overstepped its role in evaluating

the expert evidence, and imposed more stringent standards than those required under the statute,4

and applicable case law. See Daubert, 509 U.S. at 588 (discussing the liberal thrust of the

4 The Cincinnatia Rules of Evidence are modeled after the Federal Rules of Evidence. R. at 26.

Cincinnatia Rule 702 is identical to its federal counterpart, as such, “it is appropriate to look to

federal interpretation of the same language where [Cincinnatia] law is sparse.” R. at 26 (citing

State v. McNamara, 934 Cin. 3d 251 (1988)).

27

Federal Rules of Evidence). Under Cincinnatia Rule of Evidence 702, an expert’s testimony need

not be based on scientific knowledge to be admitted. Cin. R. Evid. 702.

The First Circuit Court of Appeals correctly held that the trial court abused its discretion

by excluding Gallagher’s testimony. R. at 29. This court should affirm the lower court’s ruling

for three reasons: First, where expert testimony is relevant and reliable, it should be admitted.

Next, Gallagher’s testimony is not only reliable, but it will also aid the trier of fact in its

determination and is therefore relevant. Finally, M3 was seriously prejudiced by the exclusion of

Gallagher’s testimony.

A. Rule 702 Is a Rule of Admissibility and is Liberally Construed to Allow Reliable,

Relevant Testimony to be Admitted at Trial.

The trial judge serves as a gatekeeper, to ensure that all evidence—including expert

testimony—is relevant and reliable. Daubert, 509 U.S. at 589. Rule 702 governs the

admissibility of expert testimony. Fed. R. Evid. 702. In performing its gatekeeping function, a

judge must make certain that the expert satisfies the requirements found in Rule 702. Kumho Tire

Co. v. Carmichael, 526 U.S. 137, 141 (1999). Rule 702 lays out five requirements for an expert’s

testimony to be admissible: (1) the witness must be qualified; (2) the witness’ testimony must

help the trier of fact determine a fact in issue; (3) it must be based on sufficient facts or data; (4)

derived from reliable principles and methods; and (5) have been reliably applied to the facts. See

Fed. R. Evid. 702. These five requirements encapsulate two issues: relevance, and reliability. A

judge may determine whether these factors are met many different ways.

In Daubert, the Supreme Court discussed several factors that judges may consider. 509

U.S. at 593–94. While the Court’s discussion revolved around analyzing scientific knowledge, it

did not require all expert witness’ testimony to be based on scientific knowledge. Id. at 590 n.8

28

(stating that its “discussion is limited to the scientific context because that is the nature of the

expertise offered” in that case). Here, the trial judge determined that Gallagher was unqualified

to testify, in part, because her opinion was “not based on scientific knowledge.” R. at 3. Such a

ruling contradicts the language of Rule 702, and with the United States Supreme Court’s

jurisprudence regarding expert testimony.

Rule 702 does not work to exclude all expert testimony not based on scientific

knowledge. Rather, Rule 702 is broadly phrased: “A witness who is qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion. . . .”

Fed. R. Evid. 702 (emphasis added). The Advisory Committee’s Note to Rule 702 states, “Fields

of knowledge which may be drawn upon are not limited merely to the scientific and technical but

extend to all specialized knowledge.” Fed. R. Evid. 702 advisory committee’s note; see also

Anne Bowen Poulin, Experience-Based Opinion Testimony: Strengthening the Lay Opinion

Rule, 39 PEPP. L. REV. 551, 567 (2012) (explaining that not only experts in the strictest sense of

the word, like physicists and doctors, will be allowed to testify as an expert).

Moreover, the factors discussed in Daubert, relevant to scientific knowledge, are not

exclusive. 509 U.S. at 593. The factors that the Court focused on were whether the expert’s

theory has been tested, whether it has been peer reviewed, what the known rate of error is, and

whether it has been generally accepted. Id. at 593–94. The Court explained that it did not

“presume to set out a definitive checklist or test” through its use of those factors. Id. Indeed, the

expert’s knowledge need not be scientific at all, but instead can be related to their work

experience. Kumho Tire, 526 U.S. at 150.

After Daubert, the Court pointed out that the inquiry under Rule 702 is a “flexible one”

because “there are many different kinds of experts, and many different kinds of expertise.” Id.

29

No single set of factors can be dispositive of all areas of expertise. Too much depends on the

particular question presented, and surrounding facts at issue. Id. To employ anything but a fluid

standard would create the very rigid test that “would be at odds with the liberal thrust of the

Federal Rules and their general approach of relaxing the traditional barriers to opinion

testimony.” Daubert, 509 U.S. at 588; see also, Amorgianos v. Nat'l R.R. Passenger Corp., 303

F.3d 256, 266 (2d Cir. 2002) (discussing the necessity of a flexible approach for determining the

admissibility of expert testimony). Rule 702 is a rule of “admissibility rather than exclusion.”

Lauzon, 270 F.3d at 686.

B. Disputes Regarding an Expert’s Qualifications Relate More to the Credibility of

the Expert’s Testimony Than to its Admissibility.

Consistent with Rule 702’s liberal approach to admitting expert testimony, our legal

system relies on an adversarial process to produce just results. Daubert, 509 U.S. at 596. Where

an expert has reasonable qualifications, and will testify to a relevant fact, the testimony should be

admitted. Weaver v. McKnight, 97 A.3d 920, 932 (Conn. 2014). Arguments regarding an expert’s

qualifications relate more to the credibility of the expert’s testimony than to its admissibility.

Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996).

Once admitted, opponents of the expert’s testimony may attack the expert’s basis for

knowledge on the subject, thereby undermining the witness’ credibility. Trial courts should allow

the witness to testify, and then sustain the opponent’s objections to particular questions, rather

than exclude the entire testimony. United States v. Laurienti, 611 F.3d 530, 548 (9th Cir. 2010).

Where a trial court did just that, the Ninth Circuit court found it had not abused its discretion. Id.

However, where the trial court excluded the expert’s testimony altogether, in spite of the expert’s

reasonable qualifications, the reviewing court found that the trial court had abused its discretion.

30

United States v. Finley, 301 F.3d 1000, 1018 (9th Cir. 2002). This approach—of allowing the

witness to testify, and entertaining specific objections—best serves the interests of Rule 702

while not prejudicing either party.

Further, a trial judge should never exclude an expert’s testimony merely because the

court believes that the witness is not the best qualified. Holbrook, 80 F.3d at 782. That would

constitute an abuse of discretion because whether an expert is the “best” qualified is a “matter of

weight upon which reasonable jurors may disagree.” Id. This is exactly what it appears the trial

judge concluded in this case. In Judge Leech’s order granting Huggins’ motion in limine, the

judge reasoned that Gallagher was unqualified to render her opinion, in part because her opinion

was not based on scientific knowledge. R. at 3. That conclusion implies that if a witness based

that same opinion on some scientific testing, her opinion would be better and therefore

admissible. Excluding Gallagher’s testimony was a clear abuse of discretion. The proper course

of action is to admit Gallagher’s testimony, thereby allowing Huggins to attack the credibility of

her conclusions. Such an approach is consistent with our adversarial system and the liberal

approach of Rule 702. As the Supreme Court explained: “Vigorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509

U.S. at 596.

C. Gallagher’s Testimony Regarding the Functional Impact of the Failure of the

Locking Mechanism on the SmithSquat is Relevant and Reliable.

The inquiry in this case, under the Restatement (Third) of Torts: Products Liability5 is

whether a malfunctioning locking mechanism rendered the SmithSquat not reasonably safe.

5 This Court adopted the principles outlined in the Restatement (Third) of Torts: Products

Liability in Ross v. Joseph Chandler & Sons, 10 Cin. 2d 240 (1994). The Restatement provides,

31

According to paragraph thirteen of Gallagher’s affidavit, if the locking mechanism

malfunctioned, an individual using the SmithSquat would have operated the machine the same

way an individual would perform squats with a simple barbell. R. at 8. Further, free-weight squat

exercises are not only safe, but are often performed without spotters. R. at 8.

“Evidence is relevant if it has any tendency to make a fact more or less probable that it

would be without the evidence, and the fact is of consequence in determining the action.” Fed. R.

Evid. 401. The ultimate fact of consequence to this cause of action is whether the failure of the

locking mechanism rendered the SmithSquat not reasonably safe. Restatement (Third) of Torts:

Prod. Liab. § 2(b). Gallagher’s testimony that the malfunction rendered the SmithSquat the

functional equivalent of a free-weight squat, and that such squats are often safely performed

without spotters, R. at 8, has a strong tendency to make the ultimate fact at issue more or less

probable. Contrary to the trial judge’s ruling, Gallagher’s testimony is very relevant.

1. Gallagher’s testimony is reliable.

“[I]nsistence on a certain kind of degree or background is inconsistent with” Rule 702

jurisprudence. Holbrook, 80 F.3d at 782. The dissent in the lower court seized on Gallagher

having no formal training in “mechanical design” or “human biomechanics.” R. at 34 (Lockhart,

J., dissenting). However, that position not only ignores the purpose of Rule 702, but it loses sight

of the ultimate question. The question is not, as the dissent suggests, what effect 200 lbs. of

weight may have on a person’s shoulder’s. R. at 34–35. The inquiry is whether a malfunctioning

locking mechanism rendered the SmithSquat “not reasonably safe.” Restatement (Third) of

in relevant part: “a product is defective in 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(b) (1998).

32

Torts: Prod. Liab. § 2(b). This is a more general question than the biomechanical impact of a

certain amount of weight on one’s musculoskeletal structure.

An expert witness does not have to be highly qualified in a specific area to testify about a

given issue. Huss, 571 F.3d at 452. In Huss, the issue before the court was whether a certain drug

caused the plaintiff’s particular heart condition, cardiomyopathy. Id. at 454. The expert

designated by the defendant was not board-certified in cardiology or toxicology—the most

relevant medical fields for that issue. Id. However, the expert witness was board-certified in

internal medicine, and had over fifteen years of experience. Id. The trail judge excluded the

expert’s testimony because there was “nothing in [his] background which entitled him to express

opinions as to whether [the drug] caused the plaintiff’s cardiomyopathy or whether the

cardiomyopathy was idiopathic.” Id. at 455–56. The Fifth Circuit Court ruled that the trial court

abused its discretion. Id. at 455.

The court highlighted the general nature of the expert’s testimony. Id. The expert was not

opining about the specific science underlying causation. Id. Indeed, he would have been

unqualified to do so. Id. More accurately, he testified that the plaintiff’s “inferential leap,”

necessary to establish causation, was unsupported by medical literature. Id. Given his education

and experience, he was well qualified to discuss the value of the support provided by the relevant

literature. Id. The court stated, “Differences in expertise bear chiefly on the weight to be assigned

to the testimony by the trier of fact, not its admissibility.” Id. at 452.

Gallagher’s testimony similarly addresses a general question. Her testimony refutes

Huggins’ theory of causation. She is not purporting to testify about the biological impact of

weight on Huggins’ neck and shoulders, just as the expert in Huss was not attempting to disprove

the science underlying the causation. Id. Rather, Gallagher’s testimony explains that the failure

33

of the locking mechanism rendered the SmithSquat the functional equivalent of an exercise

found in gyms throughout the country: a free-weight squat. R. at 8. As a CPT, she is amply

qualified to discuss the similarity between Smith machine squats and free-weight squats. R. at 6.

Because the malfunction merely transformed the SmithSquat into a reasonably safe exercise, the

malfunction did not render it unreasonably dangerous.

Further, similar to the expert in Huss, Gallagher is qualified to render such an opinion.

She has over fifteen years of experience as a USCEM Certified Personal Trainer. R. at 6. She has

worked extensively as a personal trainer in gyms and exercise clubs throughout the United

States. R. at 8. Given that amount of experience and training, she is well versed in the proper use

of weight-training equipment. R. at 8. Gallagher also has personal knowledge of the SmithSquat,

having used one to understand the utility of the locking mechanism. R. at 8.

2. A reasonable layperson will likely not understand the differences and

similarities between the SmithSquat and a free-weight squat.

Experts may not testify to aid in determinations easily made by juries with no help.

United States v. Hanna, 293 F.3d 1080, 1086 (9th Cir. 2002). The dissent in the lower court

relied on Hanna to support the argument that Gallagher’s testimony should be excluded. R. at 33.

However, that case dealt with a different question than this case presents.

In Hanna, the question presented was whether a reasonable person would have

interpreted a communication as a true threat. 293 F.3d at 1086. That question implicitly

precludes the use of expert testimony. Presumably, the members of the jury are reasonable,

rational people. The government offered the testimony of secret service agents to discuss their

experience and expertise in evaluating the credibility of threats directed towards the President.

Id. at 1085. The court held that the agent’s testimony failed to address an issue beyond the

34

common knowledge of an average juror. Id. at 1086. A jury can fully discern how a reasonable

person would interpret a particular communication.

Here, the question is not how a reasonable person would interpret a communication, but

whether the failure of a component rendered a product not reasonably safe to use. See

Restatement (Third) of Torts: Prod. Liab. § 2(b). This requires knowledge beyond that common

to the average person. A juror will likely not know of the considerations regarding proper form

for a free-weight squat, nor how a Smith machine affects the nature of a squat. Gallagher is

qualified, through the USCEM certification, and through her over fifteen years of experience

with exercise machines—including standard Smith machines and the SmithSquat—to aid the

jury in deciding the question at issue.6 R. at 8. “By virtue of training and experience, [Gallagher]

possesse[s] special knowledge and skill not available to the ordinary witness.” United States v.

Majors, 196 F.3d 1206, 1215 (11th Cir. 1999).

Determining the differences between a squat on the SmithSquat, and a free-weight squat

is not common knowledge. Gallagher possesses the knowledge through her education and

experience to better understand and explain the differences and similarities between the two

exercises. Therefore, her testimony will aid the jury in understanding the confluence of those

exercises, to better answer the question presented.

6 The dissent below expressed concern that Gallagher’s testimony would violate Cincinnatia

Rule of Evidence 704 by “usurp[ing] the role of the jury in opining on an ultimate issue of law.”

R. at 34. However, Rule 704 clearly states, “An opinion is not objectionable just because it

embraces an ultimate issue.” Cin. R. Evid. 704 (a). The only time it is objectionable is in

criminal cases. Cin. R. Evid. 704 (b).

35

D. M3 Was Seriously Prejudiced By the Exclusion of Gallagher’s Testimony.

Gallagher is qualified to testify as an expert witness because of her extensive experience.

Further, her testimony would assist the jury in determining whether the malfunctioning locking

mechanism rendered the SmithSquat not reasonably safe. The trial decided that because

Gallagher’s knowledge was not “scientific” that she was unqualified to testify. R. at 3. As the

lower court pointed out, “it is unclear whether the trial court took any consideration into Ms.

Gallagher’s testimony before denying summary judgment in favor of M3.” R. at 29.

The trial court’s refusal to admit the testimony impaired M3’s ability to discredit a central

element of Huggins’ case. This evidence is reliable and relevant; excluding it seriously

prejudices M3. Because the trial court arbitrarily excluded Gallagher’s testimony, this was an

abuse of discretion, resulting in harm to M3. Accordingly, the lower court was correct in

reversing the trial judge’s ruling.

CONCLUSION

This Court should affirm-in-part and reverse-in-part. Specifically, this Court should

REVERSE the First Appellate Circuit Court’s judgment and hold that the Contract Specification

Defense applies to Strict Liability Design Defect claims. This Court should AFFIRM the First

Appellate Circuit Court’s judgment that Amelia Gallagher’s expert testimony should be

admitted.

Respectfully submitted,

_______________________________

ATTORNEYS FOR PETITIONER

A-1

APPENDIX “A”

FEDERAL RULES OF EVIDENCE

Fed. R. Evid. 401: Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the

evidence; and

(b) the fact is of consequence in determining the action.

Fed. R. Evid. 702: Testimony by Expert Witness

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:

(a) 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;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 704: Opinion on an Ultimate Issue

(a) In General--Not Automatically Objectionable. An opinion is not objectionable just because it

embraces an ultimate issue.

(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the

defendant did or did not have a mental state or condition that constitutes an element of the crime

charged or of a defense. Those matters are for the trier of fact alone.

A-2

FEDERAL RULE OF CIVIL PROCEDURE

Fed. R. Civ. Pro. 56: Summary Judgment

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for

summary judgment, identifying each claim or defense--or the part of each claim or defense--on

which summary judgment is sought. The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law. The court should state on the record the reasons for granting or

denying the motion.

B-1

APPENDIX “B”

CINCINNATIA RULES OF EVIDENCE

Cin. R. Evid. 401: Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the

evidence; and

(b) the fact is of consequence in determining the action.

Cin. R. Evid. 702: Testimony by Expert Witness

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:

(a) 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;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Cin. R. Evid. 704: Opinion on an Ultimate Issue

(a) In General--Not Automatically Objectionable. An opinion is not objectionable just because it

embraces an ultimate issue.

(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the

defendant did or did not have a mental state or condition that constitutes an element of the crime

charged or of a defense. Those matters are for the trier of fact alone.

B-2

CINCINNATIA RULE OF APPELLATE PROCEDURE

Cin. R. App. P. 4(F): Interlocutory Appeals

Interlocutory appeals may be taken where the trial court certifies the appeal and the appellate

court finds:

(1) The appellant will suffer substantial expense, damage or injury if determination of the

propriety of the order waits until after a final judgment;

(2) The order involves a substantial question of law the determination of which will lead to

the orderly disposition of the case; or

(3) Remedy by appeal after final judgment is not practicable