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Expert in product liability case must opine to more than the existence of a better design.

Snider-Jefferson v. Amigo Mobility Int'l, Inc.
2:15-CV-406, 2016 WL 4424954 (E.D. Va. Aug. 17, 2016)

by Gregory Emrick, Associate
Semmes, Bowen & Semmes (

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On July 20, 2013, Plaintiff was struck by a shopping cart being pushed by another customer while standing in a store’s entry way. The shopping cart, manufactured by Amigo Mobility, struck the Plaintiff’s ankle with the cart’s platform edge causing injury. Plaintiff sued Amigo Mobility on a theory of products liability. In support of her claim, Plaintiff presented the testimony of Sebastian Y. Bawab, Ph.D., a mechanical engineer. Dr. Bawab had recreated the incident and conducted impact testing, opining that the addition of an inexpensive rubber bumper to the cart’s platform edge lowered the stress value to the impacted pedestrian by nearly a factor of three. Dr. Bawab opined that the cart’s current design was inferior to his design as it exposed pedestrians further to potentially sharp edges, if impacted. In his report, however, he did not “consider any industry or government standards when assessing the cart's design. Dr. Bawab did not consider whether the cart met consumers' expectations. Dr. Bawab did not compare the cart to competitors' carts, did not consider published literature, and did not research the existence of other cart injuries or accidents.”

The Defendants retained an expert who promulgated a position that relied upon the Underwriters Laboratory (“UL”) standards Electric-Battery-Powered Carts for Commercial Use, and Safety Tests for Sharpness on Edges on Equipment. Dr. Bawab thereafter issued a rebuttal report attacking the applicability of the cited standards, but also stating that the metal platform edge was both “inferior and dangerous.” Thereafter, Amigo Mobility moved to strike Dr. Bawab’s opinions and moved for summary judgment.

In granting the Defendant’s Motion for Summary Judgment, the Court noted that under Virginia law, Dr. Bawab’s testimony was insufficient to meet Plaintiff’s burden of establishing a prima facie case of proving a defect. The product must contain a defect that was unreasonably dangerous for its intended use. In determining if a “defect” exists, a plaintiff must present expert testimony that the product violates industry or government standards, or, if none apply, violated the reasonable expectation of the consumers at the time of sale. The expectation of the consumers is determined through “evidence of actual industry practices, ... published literature, and from direct evidence of what reasonable purchasers considered defective.” Id. at *3, quoting Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir. 1993). The Court noted that Dr. Bawab failed to cite to any standards, or indeed even considered the safety standards of the existing design. Instead, his opinion was that there was a safer design alternative. “Virginia law requires manufacturers to make reasonably safe products, [but] it does not require them to adopt the safest conceivable design.” Id. at *3, citing Redman v. John D. Brush & Co., 111 F.3d 1174, 1177 (4th Cir. 1997). The Court further noted that Dr. Bawab’s rebuttal report was improper, as he “used his rebuttal to bolster his testimony in accordance with the standard Plaintiff needed to meet in order to make a prima facie case for negligent design, changing his opinion on whether the design was unreasonably dangerous.” Id. at *4. The Court then held that Dr. Bawab’s opinions were insufficient to meet Plaintiff’s burden of proof to demonstrate the shopping cart violated an industry standard or consumer expectation, and granted summary judgment in favor of Amigo Mobility.