Products Liability Law Reporter

A federal district court denied a plaintiff’s motion to exclude the opinions of a defense witness in a lawsuit alleging inadequate warnings against a tractor manufacturer.

Here, Brian Miller and his father operated a Kansas dairy farm. While using the farm’s used New Holland T7.270 Auto Command tractor to pull a seed drill to plant wheat, Miller got up from the moving tractor’s driver seat and stepped off the tractor to inspect a possible piece of metal on the ground. The seed drill hit him in the back, and he fell to the ground before the tractor ran over him. Miller filed suit against CNH Industrial America LLC, which manufactured the tractor, alleging that the defendant’s warnings and instructions regarding the tractor’s electronic parking brake were inadequate in that they led him to believe the tractor would stop as he dismounted. Miller moved to exclude Kirk Ney, the defense expert on accident analysis.

Denying the motion, the district court noted that the plaintiff did not make a broad argument that Ney was unqualified or that every one of his opinions was unreliable. Addressing the various aspects of Ney’s proposed opinions, the court first considered his opinion that the tractor at issue had been in operation for seven years without any similar incidents. The court found that the fact that there had been no similar incidents could be helpful to the average juror in determining whether the plaintiff’s claim was reasonable.

Next, the court addressed Ney’s opinion that the tractor contained several warnings and instructions to always engage the brake and never exit a moving tractor. The court rejected the plaintiff’s argument that Ney had formed this opinion using an incorrect version of the tractor manual. The manual Ney used and the plaintiff’s 2011 manual both instruct the tractor operator never to dismount a moving tractor, the court said. The court also found that, contrary to the plaintiff’s assertion, Ney possessed the experience—as an engineer with experience in tractor design—to form his opinion.

Regarding Ney’s opinion that the tractor was moving faster than the plaintiff remembered, the court found that the expert’s reliance on another defense expert was proper under the federal rules, which allow an expert to base an opinion on facts or data of which the expert has been made aware or personally observed. The court also rejected the argument that Ney’s opinion that it is unreasonable to shut down a large tractor when its operator leaves the driver’s seat was unhelpful. Such an opinion could be helpful to the average juror, the court said.

Finally, the court disregarded the plaintiff’s challenge to Ney’s opinion that it was unreasonable to compare a tractor with other types of single-use agricultural equipment, such as a sprayer, which may require a shutdown mechanism because it applies caustic and potentially harmful chemicals. Ney is qualified to render this opinion, the court said, adding that he is nevertheless subject to cross-examination.

Citation: Miller v. CNH Indus. Am., 2023 WL 346229 (D. Kan. Jan. 20, 2023).