Newell Rubbermaid, Inc. v. Raymond Corp.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0089p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

NEWELL RUBBERMAID, INC.,

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No. 10-3912

v.

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Defendant-Appellee. -

THE RAYMOND CORPORATION,

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Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 08-02632—Sara E. Lioi, District Judge.

Argued: January 18, 2012

Decided and Filed: April 3, 2012

Before: BATCHELDER, Chief Judge; CLAY and GILMAN, Circuit Judges.

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COUNSEL

ARGUED: Matthew M. Nee, Lakewood, Ohio, for Appellant. Raymond D. Jamieson,

QUARLES & BRADY LLP, Milwaukee, Wisconsin, for Appellee. ON BRIEF:

Matthew M. Nee, Lakewood, Ohio, Nicholas A. Panagopoulos II, Cleveland, Ohio, for

Appellant. Raymond D. Jamieson, Patrick W. Schmidt, QUARLES & BRADY LLP,

Milwaukee, Wisconsin, Harry T. Quick, BRZYTWA QUICK & McCRYSTAL LLC,

Cleveland, Ohio, for Appellee.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Newell Rubbermaid, Inc. (Newell)

filed this subrogation action to hold The Raymond Corporation (Raymond) liable for

workers’ compensation benefits that Newell paid its employee, Jean Hashman, after she

sustained injuries in a forklift accident at work. Raymond had designed and

1

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manufactured the forklift. Newell asserts that a design defect—the failure to include a

rear guard door on the forklift—caused Hashman’s injuries when her left foot slipped

out of the operator compartment and was crushed between the forklift and a warehouse

structure.

In the district court, Raymond filed a motion to exclude the testimony of

Newell’s expert witness and a motion for summary judgment. Both motions were

granted. The court concluded that the methods used by the proposed expert were not

sufficiently reliable to support his proferred opinions. As a result, the court granted

summary judgment for Raymond, determining that Newell could not sustain a design-

defect claim without expert testimony. For the reasons set forth below, we AFFIRM

the judgment of the district court.

I. BACKGROUND

In December 2004, Hashman worked at a Newell facility in Ohio. One of her

regular duties was to drive a Dockstocker forklift manufactured by Raymond. The

Dockstocker was designed with an “open” compartment in which the operator stands

(i.e., the forklift has no seat). Nor did it have a rear guard door. Raymond sells separate

rear guard doors, intended to prevent items on the warehouse floor from protruding into

the operator compartment, but Newell did not purchase this component for its

Dockstocker. Notably, the industry standards developed by the American National

Standards Institute/American Society of Mechanical Engineers (ANSI/ASME) do not

mandate that manufacturers include a rear guard door as a standard feature on forklifts.

Before beginning her shift on December 23, 2004, Hashman completed the

required safety check and found nothing wrong with the Dockstocker. Later that day,

while driving toward a “robot cage” with the operator compartment facing forward,

Hashman attempted to brake by “plugging” the forklift; i.e., manually reversing the

direction in which the forklift was traveling. But the Dockstocker did not immediately

stop. Hashman testified in her deposition that she “got scared” and “stepped off” the

No. 10-3912 Newell Rubbermaid v. Raymond Corporation Page 3

Dockstocker, but other evidence in the record suggests that Hashman instead lost her

balance and slipped out of the operator compartment.

In any event, Hashman’s left foot became trapped between the forklift and the

robot cage, causing serious injuries that ultimately resulted in a partial amputation.

Hashman sued Newell for workers’ compensation benefits in 2006, and Newell settled

the claim. Newell’s investigation report found no fault with the Dockstocker’s brakes

or its design, and instead directed the blame toward Hashman’s poor training and the

conditions in the warehouse. But Newell now asserts that Hashman’s foot would not

have left the operator compartment had Raymond equipped its Dockstocker with a

standard-issue rear guard door, a safety feature about which Raymond has been aware

since at least 1961.

In November 2008, Newell filed the present complaint against Raymond,

alleging a design-defect claim under Ohio’s products liability law, as well as several

other claims. Under Ohio law in effect at the time of Hashman’s accident, Newell was

entitled to proceed simultaneously under two distinct theories of liability for a design

defect: (1) risk-benefit, and (2) consumer-expectations. See Ohio Rev. Code

§ 2307.75(A) (2001) (amended 2005). (The statute has since been amended to remove

the consumer-expectations theory, but Raymond concedes that the earlier version with

both tests is the appropriate version to apply in the present case.) The complaint did not

select a specific theory of design-defect liability.

Newell offered the testimony of Benjamin T. Railsback to support its claims.

Railsback, a forensic engineer with no experience in driving a Raymond forklift and only

limited experience in driving forklifts from other manufacturers, opined that the

Dockstocker was defectively designed because it did not have a rear guard door to

prevent the operator’s feet from accidentally leaving the operator compartment.

Raymond moved to exclude Railsback’s testimony.

At the same time, Raymond moved for summary judgment, arguing that Newell

had failed to adequately support its design-defect claim. Newell responded with

Railsback’s report, deposition testimony from Raymond’s experts, and deposition

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testimony from eyewitnesses to the accident. It also argued that summary judgment was

inappropriate because Raymond had failed to demonstrate the absence of a genuine

dispute on the consumer-expectations theory, a theory not addressed in Raymond’s brief.

But Newell did not support this latter argument with any evidence of its own that would

support a genuine dispute as to consumer expectations regarding the Dockstocker.

The district court granted Raymond’s motion to exclude Railsback’s testimony.

It concluded that Railsback did not have sufficient training or experience with forklifts

to qualify him as an expert witness, that his testimony was not relevant because it

involved different models of forklifts than the one at issue in the present case, and that

his methods of extrapolating from anecdotal evidence and his failure to test his proposed

alternative designs rendered his opinion unreliable.

The district court then granted Raymond’s motion for summary judgment. It

ruled that, under applicable Sixth Circuit precedent, Newell could not support its risk-

benefit theory of design defect without expert testimony. The court similarly concluded

that expert testimony was necessary to support Newell’s consumer-expectations theory.

It so ruled based on this court’s opinion in Brown v. Raymond Corp., 432 F.3d 640, 646

(6th Cir. 2005), where we held under Tennessee law that a forklift was a complex

mechanism requiring expert testimony to support both types of design-defect claims.

The district court applied this requirement to Newell’s claim under Ohio law, concluding

that Newell was unable to meet its burden under the consumer-expectations theory.

Newell has timely appealed. It seeks reversal of the district court’s decision

granting Raymond’s motions to exclude Railsback’s testimony and for summary

judgment.

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II. ANALYSIS

A. Standard of review

We review de novo a district court’s grant of summary judgment. ACLU of Ky.

v. Grayson Cnty., Ky., 591 F.3d 837, 843 (6th Cir. 2010). Summary judgment is proper

where no genuine dispute of material fact exists and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for

summary judgment, the court must draw all reasonable inferences in favor of the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). The central issue is “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as

a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

With respect to the admissibility of expert testimony, we apply the

abuse-of-discretion standard. Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 258

(6th Cir. 2001). “A district court abuses its discretion if it bases its ruling on an

erroneous view of the law or a clearly erroneous assessment of the evidence.” Brown,

432 F.3d at 647 (internal quotation marks omitted).

B. Exclusion of Newell’s expert witness

1. Applicable law

Newell first argues that the district court erroneously excluded the testimony of

Railsback, its expert witness. The admissibility of expert testimony is governed by Rule

702 of the Federal Rules of Evidence. At the time of trial, Rule 702 provided:

If scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training,

or education, may testify thereto in the form of an opinion or otherwise,

if (1) the testimony is based upon sufficient facts or data, (2) the

testimony is the product of reliable principles and methods, and (3) the

witness has applied the principles and methods reliably to the facts of the

case.

No. 10-3912 Newell Rubbermaid v. Raymond Corporation Page 6

Fed. R. Evid. 702 (2010) (amended December 1, 2011 for stylistic reasons only, see cmt.

2011 amends.).

A district court’s task in assessing evidence proffered under Rule 702 is to

determine whether the evidence “both rests on a reliable foundation and is relevant to

the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). One

key consideration is “whether the reasoning or methodology underlying the testimony

is scientifically valid.” Id. at 592-93. The inquiry is “a flexible one,” and “[t]he

focus . . . must be solely on principles and methodology, not on the conclusions they

generate.” Id. at 594-95. An expert who presents testimony must “employ[] in the

courtroom the same level of intellectual rigor that characterizes the practice of an expert

in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

Although there is no “definitive checklist or test” for meeting this standard,

Daubert set forth a number of factors that typically “bear on the inquiry.” 509 U.S. at

593. These include whether the theory or technique in question “can be (and has been)

tested,” whether it “has been subjected to peer review and publication,” whether it has

a “known or potential rate of error,” and whether the theory or technique enjoys “general

acceptance” in the “relevant scientific community.” Id. at 593-94 (internal quotation

marks omitted). Red flags that caution against certifying an expert include reliance on

anecdotal evidence, improper extrapolation, failure to consider other possible causes,

lack of testing, and subjectivity. Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 177 (6th

Cir. 2009). In addition, if a purported expert’s opinion was prepared solely for litigation,

that may also be considered as a basis for exclusion. Johnson v. Manitowoc Boom

Trucks, Inc., 484 F.3d 426, 434 (6th Cir. 2007).

The use of an expert witness in a forklift design-defect case was previously

before this court in Brown, where the panel upheld the decision of the district court to

exclude the expert’s opinion. In Brown, the expert witness failed to present or test any

alternative forklift designs and could not speak to the comparative risks or benefits of

the various designs. The district court noted that “the design of industrial equipment is

a complex process and changes to prevent one problem could create other problems, thus

No. 10-3912 Newell Rubbermaid v. Raymond Corporation Page 7

increasing the overall danger of using a product.” Brown v. Raymond Corp., 318 F.

Supp. 2d 591, 599 (W.D. Tenn. 2004), aff’d, 432 F.3d 640 (6th Cir. 2005).

In affirming Brown, this court relied heavily on Dhillon v. Crown Controls

Corp., 269 F.3d 865 (7th Cir. 2001), where the Seventh Circuit excluded an expert

witness’s testimony because the expert had not designed forklifts of the model at issue

in that case or performed the “crucial” tests on alternative designs that were necessary

for considering “product- and manufacturer-specific” issues. Id. at 870. Based on

Dhillon, this court concluded that the expert witness’s failure to provide evidence of

testing on his alternative design justified the district court’s ruling to exclude the

testimony. Brown, 432 F.3d at 647-48.

2. Analysis

Raymond initially argues that Railsback is not qualified to serve as an expert

because he is employed as a forensic engineer, meaning that his work product was

necessarily prepared for litigation. But we question whether employment alone should

bar Railsback from testifying as an expert witness, since forensic

scientists—professionals in a field similar to Railsback’s—are frequently considered

qualified to testify at trial. See, e.g., United States v. Wilson, 385 F. App’x 497, 499 (6th

Cir. 2010) (describing testimony from a forensic scientist about processing gunshot

residue); United States v. McPhearson, 303 F. App’x 310, 312 (6th Cir. 2008)

(highlighting a forensic scientist’s testimony as an expert in chemistry); United States

v. Frost, 182 F.3d 919 (table), 1999 WL 455434, at *3 (6th Cir. June 24, 1999)

(unpublished opinion) (discussing a forensic scientist’s expert opinion about marijuana-

growing equipment). We need not decide this issue, however, because even if Railsback

was qualified to serve as an expert, the district court did not abuse its discretion when

it determined that his methodology was not sufficiently reliable to allow his testimony.

Railsback’s report was comprehensively evaluated by the district court. The

court concluded that

No. 10-3912 Newell Rubbermaid v. Raymond Corporation Page 8

Railsback’s methods are clearly not scientifically sound. He merely

counts accidents from accident reports relating to non-Raymond forklifts.

Without questioning or verifying the data and without conducting any

tests of his own . . . , he reaches conclusions about the forklift involved

in this case. Furthermore, although . . . he opines that a latching or

spring-loaded rear door is necessary to make this forklift safe and that

such a modification would be technically and economically feasible, he

never actually tested either of these alternative designs.

Newell Rubbermaid, Inc. v. Raymond Corp., No. 5:08CV2632, 2010 WL 2643417, at *6

(N.D. Ohio July 1, 2010) (unpublished opinion) (footnotes omitted, ellipses added). In

this short paragraph, the district court identified at least four red flags in Railsback’s

methodology: anecdotal evidence, improper extrapolation, failure to consider other

possible causes, and, significantly, a lack of testing. These concerns have been deemed

sufficient to warrant exclusion in prior cases. See, e.g., Best, 563 F.3d at 177-78; Brown,

432 F.3d at 647-48; Dhillon, 269 F.3d at 869-70.

In response to the district court’s opinion, Newell argues on appeal that the only

evidence available to Railsback was anecdotal in nature. Perhaps this should have been

an indication to Newell that it needed a different expert. In any event, Newell has not

attempted on appeal to clarify Railsback’s testing methodology or the evidence

supporting his position that a rear guard door would have prevented the injury here. In

addition, Newell does not dispute Raymond’s assertion that Railsback’s expert opinion

favoring a rear guard door runs contrary to industry standards.

The district court’s extensive discussion of the problems posed by Railsback’s

report is well supported. Newell has failed on appeal to show an abuse of discretion that

would call into question the decision to exclude Railsback as an expert witness. We

therefore find no abuse of discretion in the district court’s ruling on this issue.

C. Design-defect claim

The version of Ohio’s products liability law that applies to the present case—a

legal issue that the parties do not dispute, despite subsequent amendments to the

statute—provides as follows:

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(A) . . . [A] product is defective in design or formulation if either of

the following applies:

(1) When it left the control of its manufacturer, the

foreseeable risks associated with its design or

formulation as determined pursuant to division

(B) of this section exceeded the benefits

associated with that design or formulation as

determined pursuant to division (C) of this

section;

(2) It is more dangerous than an ordinary consumer

would expect when used in an intended or

reasonably foreseeable manner.

Ohio Rev. Code § 2307.75(A) (2001) (amended 2004).

This statute offers two alternative approaches for demonstrating a design defect:

a risk-benefit test in subsection (A)(1), and a consumer-expectations test in subsection

(A)(2). See Perkins v. Wilkinson Sword, Inc., 700 N.E.2d 1247, 1248 (Ohio 1998)

(explaining that “these standards are not mutually exclusive, but instead constitute a

single, two-pronged test for determining whether a product is defectively designed”

(internal quotation marks omitted)); see also Hisrich v. Volvo Cars of N. Am., Inc., 226

F.3d 445, 454 (6th Cir. 2000) (describing the tests as “not fungible,” and noting that “a

finding under one test does not imply a similar finding under the other test”). A jury

may consider either or both theories of liability. Perkins, 700 N.E.2d at 1248 (“[I]f the

jury concludes that one standard is not met, the jury may consider the other standard.”

(internal quotation marks omitted)); Hisrich, 226 F.3d at 454 (interpreting Ohio law to

allow both theories in a case involving the safety of an automobile airbag that killed a

six-year-old passenger after deploying during a low-speed collision).

Under the risk-benefit theory, a court weighs the existing design’s foreseeable

risks against its benefits, as determined by a nonexclusive statutory list of factors. Clay

v. Ford Motor Co., 215 F.3d 663, 669-70 (6th Cir. 2000) (applying this test in a case

involving a car accident where a sport utility vehicle rolled over). Newell concedes that

Ohio law requires expert testimony where aspects of the defect or the proposed

alternative designs are technically complex and outside the understanding of a lay juror.

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See Atkins v. Gen. Motors Corp., 725 N.E.2d 727, 733 (Ohio Ct. App. 1999) (explaining

that expert testimony is “often . . . necessary,” particularly where the product at issue is

complex, but that such testimony was not necessary in a case where a van’s side door

closed on a passenger’s hip because the product and the alleged defect were not overly

complex); see also Aldridge v. Reckart Equip. Co., No. 04CA17, 2006 WL 2716696, at

*18 (Ohio Ct. App. Sept. 19, 2006) (unpublished opinion) (per curiam) (relying on

Atkins to reject the defendant’s argument that expert testimony was required and to

conclude instead that “expert testimony may be required if the existence of a technically

feasible alternative design is knowledge beyond that possessed by the average lay

person”).

Under the consumer-expectations theory, a product may be defectively designed

if “[i]t is more dangerous than an ordinary consumer would expect when used in an

intended or reasonably foreseeable manner.” Ohio Rev. Code § 2307.75(A)(2) (2001)

(amended 2004); Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 901-02 (6th Cir.

2004) (discussing the requirements of the consumer-expectations test in light of a jury-

instruction challenge); Bouher v. Aramark Servs., Inc., 910 N.E.2d 40, 43 (Ohio Ct. App.

2009) (rejecting a consumer-expectations claim alleging a design defect in a coffee

maker that allegedly boiled water too hot). This test examines “what would be

contemplated by the ordinary consumer who purchases [the product], with the ordinary

knowledge common to the community as to its characteristics.” Hisrich, 226 F.3d at

454-55 (internal quotation marks omitted). “[T]he determination of whether a product

is more dangerous than an ordinary person would expect is generally a question of fact

which does not require expert testimony.” Id. at 455 (internal quotation marks omitted).

Neither this court nor the Ohio state courts have required the consumer to have

technical knowledge or a specialized background under the consumer-expectations

theory, as long as the consumer has “an expectation in the normal operation and safety”

of the product. See id. at 455, 456 (“[T]he issue is not whether the consumer can

determine the reasonable expectations for the technical operation of the product, but the

consumer’s reasonable ability to expect the performance of the product.”). We have

No. 10-3912 Newell Rubbermaid v. Raymond Corporation Page 11

found no case holding that Ohio’s consumer-expectations test is inapplicable to complex

devices, and this court has previously been “unpersuaded” by such an argument. See id.

at 456. But the Ohio Supreme Court has cautioned that a plaintiff might not succeed on

a consumer-expectations theory if the relevant product is one about which consumers are

“ignorant.” Id. at 455-56 (discussing Knitz v. Minster Mach. Co., 432 N.E.2d 814, 818

(Ohio 1982)).

Ohio caselaw is less than clear about the evidence needed to support a consumer-

expectations claim at the summary-judgment stage. On the one hand, the plain language

of the statute and Ohio’s pattern jury instructions, as well as several cases applying Ohio

law, seem to require that a plaintiff supply evidence depicting the expectations that

consumers hold about the contested product. See Lawrence v. Raymond Corp., No. 3:09

CV 1067, 2011 WL 3418324, at *9 (N.D. Ohio Aug. 4, 2011) (unpublished opinion)

(dismissing the plaintiffs’ claim because they “failed to present any evidence of the

expectations of normal consumers (users) [of] any type of forklift”); 3 Ohio Jury

Instructions § 351.09(2)(C) (2002), as quoted in Tompkin, 362 F.3d at 902 n.19. This

evidence should demonstrate “‘whether ordinary consumers are aware of the [product’s]

alleged dangers,’” not simply “‘what the [victim] would have expected.’” Lawrence,

2011 WL 3418324, at *9 (brackets added, ellipses and emphasis omitted) (quoting

Jordan v. Paccar, Inc., 37 F.3d 1181, 1184 (6th Cir. 1994)) (determining that the

plaintiffs could not rely solely on the victim’s specific expectations or the expectations

of the jury as general consumers).

But other cases concurrently maintain that “‘evidence of unsafe, unexpected

product performance is sufficient to infer the existence of a product defect’ under . . . the

consumer-expectation standard,” even without further evidence. Hisrich, 226 F.3d at

455 (quoting State Farm Fire & Cas. Co. v. Chrylser Corp., 523 N.E.2d 489, 494-95

(Ohio 1988), superseded by subsequent amendments to Ohio Rev. Code § 2307.75); see

also Tompkin, 362 F.3d at 901-02 (concluding that the district court’s refusal to instruct

the jury on the consumer-expectations theory was harmless because the plaintiff’s

unexpected-performance argument was “virtually indistinguishable” from her implied-

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warranty claim, on which the court did provide instructions (internal quotation marks

omitted)); Donegal Mut. Ins. Co. v. White Consol. Indus., Inc., 852 N.E.2d 215, 221

(Ohio Ct. App. 2006) (holding that the plaintiffs presented sufficient evidence of

unexpected performance where they alleged that their stove started a fire when set on the

self-clean mode). But regardless of which standard of proof the court applies, the Ohio

Court of Appeals has determined that the mere fact of injury—without evidence of errant

performance or contrary consumer expectations—is insufficient to support a design-

defect claim. Bouher, 910 N.E.2d at 43.

In addition to meeting at least one of the two design-defect theories, Newell must

show that the proposed alternative design would be reasonable in light of the full range

of potential forklift accidents. See Francis v. Clark Equip. Co., 993 F.2d 545, 552 (6th

Cir. 1993). Francis involved a claim that the forklift in question should have had an

operator-restraint system to hold operators in the vehicle in the event that it flipped over.

Id. at 551-52. This argument, the court concluded, “necessarily entails aspects of a risk-

benefit analysis,” despite the claim’s origin under the consumer-expectations theory,

because the factfinder was tasked with evaluating the allegedly reasonable alternatives.

Id. at 551 (presuming that an alternative design would prevent some injuries, the court

noted that “the jury must also consider the feasibility and effectiveness of seat belts in

light of other accidents that can occur in forklifts,” which “necessarily entails a

discussion of whether the adoption of the alternative design would have affected the

safety of the driver in [other types of] forklift accidents . . . [or] adversely affected the

driver’s ability to perform his or her job.” (brackets and ellipses added)).

Finally, for Newell’s claims to survive summary judgment, it must demonstrate

“that the allegedly defective condition was the most probable cause of [Hashman’s]

injuries or losses.” See Donegal Mut., 852 N.E.2d at 221. Circumstantial evidence of

causation is sufficient, and Newell need show only that its hypothesis is more probable

than other potential causes. See Sigler v. Am. Honda Motor Co., 532 F.3d 469, 486 (6th

Cir. 2008) (holding, in a case based on Tennessee law, that the plaintiff’s claim of design

defect in an automobile airbag could withstand summary judgment based on

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circumstantial evidence alone); Donegal Mut., 852 N.E.2d at 221 (applying this rule to

the causation element of a design-defect claim under Ohio law). Expert testimony about

the exact nature of the defect is not necessary, as long as the evidence sufficiently points

to the defective component in general as the cause of injury. Id. at 221 (determining that

the expert did not need to testify about the exact part of the electrical switch that caused

the fire because the evidence was sufficient to allow the jury to conclude that the switch

in general had been defectively designed).

D. The summary-judgment decision

1. Risk-benefit theory

Newell admits in its appellate brief that Ohio law requires expert testimony to

support the risk-benefit theory of design defect in the present case, and it bases its

arguments concerning the viability of this theory solely on Railsback’s testimony.

Because the district court did not abuse its discretion in excluding Newell’s only expert

and because Newell has offered no other evidence to support its risk-benefit theory, the

district court did not err in granting summary judgment in favor of Raymond on this

theory.

2. Consumer-expectations theory

a. Newell did not waive this theory

Raymond first argues that Newell waived this issue by failing to develop the

consumer-expectations theory in the district court. This argument is based on the fact

that none of the documents filed by Newell in the district court—including the

complaint—specified a theory of design defect. Raymond in turn chose just one theory

(risk-benefit) on which to focus its summary-judgment attack, a fact that Newell pointed

out in its responsive brief. Now Raymond argues that, in order to withstand waiver,

Newell was obligated to demonstrate a genuine dispute as to all theories of design defect

that Newell chose to advance.

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Raymond’s argument, however, goes to the propriety of the district court’s grant

of summary judgment, not to the issue of waiver, and will be addressed below. In its

responsive brief to Raymond’s motion, Newell adequately indicated that it planned to

pursue the consumer-expectations theory in addition to the risk-benefit theory, and the

district court considered the merits of both theories before granting summary judgment.

We thus conclude that Newell has not waived this argument.

b. The consumer-expectations theory does not

require expert testimony under Ohio law

In Brown v. Raymond Corp., 432 F.3d 640 (6th Cir. 2005), this court held that,

under Tennessee law, a plaintiff must provide expert testimony to sustain a design-defect

claim involving a “complex” product “about which a consumer would have no

expectations,” and that Tennessee’s consumer-expectations test does not apply to

complex products. Id. at 644, 647 (internal quotation marks omitted). Newell argues

that the district court erred in applying Brown’s interpretation of Tennessee law to the

consumer-expectations test under Ohio’s products liability law. The district court indeed

reasoned that “under the teachings of Brown, because a forklift has been determined by

the Sixth Circuit to be a complex mechanism, the consumer expectation test is

inapplicable and, when applying the risk-benefit test, expert testimony is required.”

Newell Rubbermaid, Inc. v. Raymond Corp., No. 5:08CV2632, 2010 WL 2643417, at *6

(N.D. Ohio July 1, 2010) (unpublished opinion).

But as this court clarified in Hisrich v. Volvo Cars of North America, Inc., 226

F.3d 445, 456 (6th Cir. 2000), and as Raymond now admits, Ohio law does not include

the distinction between complex and simple products found in Tennessee law. In

addition, Ohio law generally does not require expert testimony under the consumer-

expectations theory. Id. at 455. The district court’s conclusion that Ohio’s consumer-

expectations test does not apply to a complex product was therefore erroneous, and

Newell is not barred from raising this theory despite the exclusion of its expert.

No. 10-3912 Newell Rubbermaid v. Raymond Corporation Page 15

c. Newell’s consumer-expectations claim cannot

withstand summary judgment

But the fact that Newell is not required to provide expert testimony in support of

its consumer-expectations theory does not render erroneous the district court’s ultimate

conclusion that this claim cannot withstand Raymond’s motion for summary judgment.

Newell argues that it carried its summary-judgment burden by pointing out that

Raymond failed to address the consumer-expectations theory in its dispositive motion.

Raymond’s motion does in fact appear to assume that Newell planned to proceed on the

risk-benefit theory only, and Raymond’s reply brief mirrors this supposition (despite

warnings to the contrary in Newell’s responsive brief).

Yet Raymond argues that it sought dismissal of the entire design-defect claim,

not simply dismissal of the risk-benefit theory. Raymond’s contention requires a

somewhat strained reading of its summary-judgment brief, but this appears to be the way

that both Newell and the district court interpreted the document. Because Newell and

the district court interpreted Raymond’s brief in this manner, we will do so as well.

Rule 56(c)(1) of the Federal Rules of Civil Procedure, amended on December 1,

2010, currently provides that

[a] party asserting that a fact . . . is genuinely disputed must support the

assertion by:

(A) citing to particular parts of materials in the record . . . ; or

(B) showing that the materials cited do not establish the

absence . . . of a genuine dispute . . . .

The commentary to Rule 56 cautions that the 2010 amendments were not intended to

effect a substantive change in the summary-judgment standard. In addition, the version

of Rule 56 in effect at the time that the district court rendered its opinion provided that

“an opposing party may not rely merely on allegations or denials in its own pleading;

rather, its response must . . . set out specific facts showing a genuine issue for trial. If

the opposing party does not so respond, summary judgment should, if appropriate, be

entered against this party.” Fed. R. Civ. P. 56(e)(2) (July 2010) (amended Dec. 2010).

No. 10-3912 Newell Rubbermaid v. Raymond Corporation Page 16

Both versions of Rule 56 require that the party seeking to avoid summary

judgment must point to evidence in the record demonstrating a genuine dispute of

material fact. A plaintiff cannot simply sit back and highlight deficiencies in the

defendant’s argument without providing some affirmative support for its own position.

Yet this is precisely what Newell did here and, in so doing, Newell failed to carry its

burden of opposing summary judgment.

Specifically, the record before us lacks any evidence of general consumers’

expectations about the Dockstocker forklift. See Lawrence v. Raymond Corp., No. 3:09

CV 1067, 2011 WL 3418324, at *9 (N.D. Ohio Aug. 4, 2011) (unpublished opinion)

(requiring “evidence of the expectations of normal consumers” to support a consumer-

expectations theory). An affidavit from the injured worker alone would not be sufficient

to establish this element, yet this is the only source of consumer expectations apparent

from the present record. See id. (relying on Jordan v. Paccar, Inc., 37 F.3d 1181, 1184

(6th Cir. 1994), for the principle that plaintiffs cannot support their consumer-

expectations claims with only the victim’s or the jury’s personal expectations).

The record also lacks any evidence of unexpected behavior by the allegedly

defective forklift in question here. True enough, the record suggests that the forklift

behaved errantly when it failed to immediately brake pursuant to Hashman’s commands.

But Newell claims that the defective feature of the Dockstocker’s design was the lack

of a rear guard door, not the lack of responsiveness in the braking system. In other

words, Newell does not connect the allegedly errant behavior in the braking system to

its argument that a design defect existed within the configuration of the operator

compartment. Cf. Donegal Mut. Ins. Co. v. White Consol. Indus., Inc., 852 N.E.2d 215,

221 (Ohio Ct. App. 2006) (involving a situation where the unexpected performance—the

stove lighting on fire—was found to be related to the alleged defect in the stove’s

electrical wiring). Nor does Newell explain how its proposed alternative design

(involving a rear guard door) would keep an operator in the operator compartment

following unexpected movements by the forklift.

No. 10-3912 Newell Rubbermaid v. Raymond Corporation Page 17

Finally, the record lacks any evidence about the feasibility of the proposed

alternative design involving rear guard doors. See Francis v. Clark Equip. Co., 993 F.2d

545, 551-52 (6th Cir. 1993) (suggesting that expert testimony as to feasibility may be

important in a case involving a similar claim). This alone is sufficient to warrant

summary judgment for Raymond on Newell’s consumer-expectations claim.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district

court.