Robert Burgett, et al v. Troy-Bilt LLC, et al
OPINION filed : For these reasons, we AFFIRM the judgment of the district court. Eric L. Clay, Circuit Judge authoring; Jane Branstetter Stranch, Circuit Judge concurring, and Timothy S. Black, U.S. District Judge for the Southern District of Ohio, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0679n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Sep 02, 2014
DEBORAH S. HUNT, Clerk
ROBERT BURGETT; DONNA
TROY-BILT LLC; MTD PRODUCTS
INC.; LOWE’S HOME IMPROVEMENT,
LLC; LOWE’S HOME CENTERS, INC.,
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
CLAY and STRANCH, Circuit Judges; BLACK, District Judge.*
CLAY, Circuit Judge.
In this products liability action, Plaintiffs Robert Burgett
(“Burgett”) and his wife, Donna Burgett, appeal from the district judge’s disqualification of their
expert and grant of summary judgment in favor of Defendants MTD Products Inc. and Troy-Bilt
LLC (collectively, “MTD”), and Lowe’s Home Centers, Inc. and Lowe’s Home Improvement,
LLC (collectively, “Lowe’s”). For the reasons set forth below, we AFFIRM the judgment of the
The Honorable Timothy S. Black, United States District Judge for the Southern District
of Ohio, sitting by designation.
On January 28, 2010, Burgett purchased a Troy-Bilt Bronco riding lawn mower from the
Lowe’s store in Paintsville, Kentucky. The mower was designed and manufactured by MTD
Products Inc., but Lowe’s had to do some assembly before the mower could be sold. The
specific mower Burgett bought also had a dead battery that the Lowe’s staff replaced before
Burgett brought the mower home. This action focuses on one of the mower’s safety features—a
seat switch system. The seat switch is designed to detect whether someone is sitting in the
driver’s seat. If the seat is occupied, the mower will function. But if the driver gets out of the
seat while the mower blades are turning, the seat switch system should stop the mower’s blades
and engine within five seconds of being triggered.
Burgett used his new mower just a few times between January 2010 and June 10, 2010.
At about noon on that date in June, Burgett gassed up the mower and began to mow his lawn.
All went smoothly until about 1:30 p.m. Burgett described what happened next at his deposition:
As I was coming up the bank on the mower, as I got up to the top, approximately
to the top, the mower started rising in the front end. The mower come all the way
up, and come up, and come back. Reared up, and come back, and as it come
back, it throwed me off the right-hand side, and down the hill. It hit it on the top,
and crushed the canopy [a covering over the driver’s seat], and kicked back on its
wheels. As it kicked back on its wheels, it made a right-hand turn, and come
down the hill right at me, and I could not get out of the way, and it run over my
(R. 95-6, Burgett Dep., at 2212.) The seat switch should have shut down the mower and the
blades, but the mower continued to run as though possessed. According to Burgett, after the
mower ran over his right foot, it continued down the slope of his yard, across the driveway at the
bottom, and wedged itself against a tree stump—its engine still running and tires still turning.
No one witnessed the accident, but Burgett’s neighbor did hear something happen with the
Burgett’s injuries were gruesome. The mower cut several deep gashes in his right foot.
Burgett remained in the hospital for almost three weeks, and had to walk with a cane for another
six months. However, one statement from Burgett’s medical records suggests an explanation for
the accident that differs from Burgett’s version. The attending physician’s notes for the date of
the accident state that Burgett “was riding his riding mower when it started to tip over. He put
his right foot out for balance and ran over his right foot with his mower.” (R. 97-7, Med.
Records, at 2571–72.) Burgett denies telling any doctor this story.
Plaintiffs filed suit in Kentucky state court in June 2011. After some jurisdictional
wrangling, see Burgett v. Troy-Bilt LLC, No. 11-CV-110, 2011 WL 4715176 (E.D. Ky. Oct. 5,
2011), the case was removed to federal district court. As relevant on appeal, Plaintiffs have
alleged three claims: two strict products liability claims against MTD, for defective design and
defective manufacturing; and a claim for negligent assembly against Lowe’s.
To support these claims, Plaintiffs offered the purported expert testimony of Jay Nogan.
The district court correctly summarized Nogan’s background and expertise as follows:
Nogan is an experienced mechanical engineer. He graduated from the University
of Delaware with a degree in mechanical engineering in 1979. While Nogan is
not licensed as an engineer in any state and never sat for a professional engineer
exam, he spent twenty-three years working as an engineer on products like
submarines, locomotives, trucks, and heavy machinery. In 2002, Nogan
transitioned from practicing as a mechanical engineer to working as a forensic
engineer. Since then, he has received training in accident reconstruction and has
examined trucks, motorcycles, mobile equipment, and other machinery. Nogan
has never designed a lawn mower or otherwise worked for a manufacturer of lawn
mowers, but he has inspected riding mowers on two occasions.
Burgett v. Troy-Bilt LLC (“Burgett Expert”), No. 12-CV-25, 2013 WL 3566355, at *2 (E.D. Ky.
July 11, 2013) (citations omitted). Armed with this expertise, Nogan produced three reports on
the accident, addressing purported defects in the mower’s design, manufacturing, and assembly.
Nogan generally criticized the design of the mower’s seat switch. The switch was not
sealed, meaning that contaminants could infect its workings. Based on one experience with a
former employer, Nogan opined that condensation could lead to intermittent and unrepeatable
electrical issues. If such intermittent issues included short circuits, those events could trick the
seat switch into thinking someone was sitting in the seat, even if the seat were empty. Nogan did
not identify a feasible alternative design per se, but noted an expired patent that claimed a safety
interlock system in a lawn mower started by a pull-cord.
Nogan acknowledged that this
alternative design would not work on Burgett’s MTD mower, because it (like all other modern
riding mowers) started with a battery. But Nogan thought this expired patent was “definitely an
aid to finding a workable commercially viable solution.” (R. 95-9, Nogan Prelim. Rpt., at 2399.)
Nogan further noted that MTD had not denied the existence of alternative designs, and since
MTD was a “major player” in the market, Nogan “would infer that [MTD was] aware of such
solutions but [has] chosen not to incorporate them.” (R. 97-10, Nogan Supp. Rpt., at 2627.)
As for any manufacturing or assembly defects, Nogan inspected the mower and found no
evidence of any cut wires or other attempts to interfere with the seat switch system. But Nogan
concluded that “if a seat switch malfunction is caused by humidity and condensation inside the
switch, the problem would not always [be] evident.” (R. 95-9, Nogan Prelim. Rpt., at 2397.)
However, Nogan did find what he deemed to be a problem with the seat switch’s wiring. When
he tested the wiring on Burgett’s mower with a micrometer, he found unexpectedly high
resistance on the wire from the seat switch to a grounded part of the mower—the negative anode.
Nogan opined that “enough resistance in a circuit will cause the ground circuit to act as if it is
‘open’ thereby defeating the” seat switch system. (Id. at 2398.) Nogan also stated that “it is
more likely than not that the connection of the seat switch green wire to the battery negative
cable was defectively manufactured.” (Id.) However, Nogan noted that Lowe’s had handled the
battery when they replaced the dead battery in Burgett’s mower. If Lowe’s had not properly
installed the new battery, this could have “exasperated the poor connection.” (Id.) Nogan did
not detect a loose connection when he inspected the mower, but he thought that the connection
could become looser when the mower was being used. Despite the purported fault in the wiring,
Nogan was never able to replicate the mower behavior that Burgett described.
After Nogan opined on the mower’s supposed faults, MTD’s own expert—Daniel
Martens, MTD’s Vice President of Product Development and Safety—tested these theories.
Martens has an educational background similar to Nogan, but has had vastly more practical
experience working with riding mowers. Martens tested Nogan’s theory on an exemplar mower,
and found that “such an ‘open circuit’ would prevent the tractor from starting but would not
otherwise affect the function of the seat switch. In other words, with an ‘open circuit,’ if the
operator inadvertently leaves the seat, the engine will shut off.” (R. 95-3, Martens Rpt., at 2090.)
Nogan, however, thought that Martens had not truly tested his theory. Nogan further noted that
“[t]he potential sites of an intermittent connection in the ground circuits of the subject mower are
numerous. This includes both the  Engine Harness and the MTD Chassis Wire Harness.” (R.
97-10, Nogan Supp. Rpt., at 2629.) This revised conclusion effectively meant that the faulty
wiring could potentially be anywhere in the seat switch system, including a possibly loose
connection with the battery.
Nogan also opined on biomechanical issues and human factors, meaning the way that
men and machines interact. Nogan thought it physically impossible for Burgett to have suffered
the injuries he did if the sole of Burgett’s foot had been on the ground. Nogan also drew on his
experiences as an accident reconstructor to conclude that it was “[d]ifficult to predict what
someone will do while trying to keep from being thrown off a tipping mower.” (R. 97-11,
Nogan Final Supp., at 2633.)
Once discovery ended, Defendants moved to exclude Nogan’s testimony and for
summary judgment on all of Plaintiffs’ remaining claims. The district court granted Defendants’
motion to exclude, finding Nogan unqualified to offer his purportedly expert opinions. Burgett
Expert, 2013 WL 3566355. After a hearing, the court also granted Defendants’ summary
judgment motion in full. Burgett v. Troy-Bilt LLC (“Burgett MSJ”), 970 F. Supp. 2d 676 (E.D.
Ky. 2013). Plaintiffs timely appealed.
Under Rule 702 of the Federal Rules of Evidence, “a proposed expert’s opinion is
admissible, at the discretion of the trial court, if the opinion satisfies three requirements. First,
the witness must be qualified by ‘knowledge, skill, experience, training, or education.’ Second,
the testimony must be relevant, meaning that it ‘will assist the trier of fact to understand the
evidence or to determine a fact in issue.’ Third, the testimony must be reliable.” In re Scrap
Metal Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008) (citations omitted) (quoting Fed. R.
Evid. 702). With regards to the first requirement, courts do not consider “the qualifications of a
witness in the abstract, but whether those qualifications provide a foundation for a witness to
answer a specific question.” Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994). The
party offering the expert’s testimony has the obligation to prove the expert’s qualifications by a
preponderance of the evidence. See Sigler v. Am. Honda Motor Co., 532 F.3d 469, 478 (6th Cir.
We note that “rejection of expert testimony is the exception, rather than the rule.” In re
Scrap Metal, 527 F.3d at 530 (quotation marks omitted). Accordingly, “Rule 702 should be
broadly interpreted on the basis of whether the use of expert testimony will assist the trier of
fact.” Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500, 516 (6th Cir. 1998) (quoting Davis
v. Combustion Eng’g, Inc., 742 F.2d 916, 919 (6th Cir. 1984)). “Daubert did not work a
seachange over federal evidence law, and the trial court’s role as a gatekeeper is not intended to
serve as a replacement for the adversary system.” Fed. R. Evid. 702 advisory comm. note, 2000
amend. (quotation marks omitted). A court should not use its gatekeeping function to impinge
on the role of the jury or opposing counsel. “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 v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 596 (1993).
The district court held that Nogan was not qualified to give expert testimony in any of the
three areas his opinions concerned—electrical issues, biomechanical issues, and human factors.
The court noted that Nogan was not an electrical engineer, had taken only two courses on
electrical engineering in college in the 1970s, and had very limited experience working with
electrical systems and their problems. See Burgett Expert, 2013 WL 3566355, at *3. Plaintiffs
argued that Nogan was just as qualified as Defendants’ expert, but the court rejected this
argument as irrelevant—Nogan’s qualifications had to be evaluated their own merits. See id. at
*3–4. In the end, the court found that Plaintiffs had not attempted to demonstrate “how Nogan
ha[d] otherwise developed expertise in electrical engineering,” and therefore, Nogan was
unqualified to testify on these issues. Id. at *3. We review this ruling for abuse of discretion,
and will only reverse “where the district court renders a manifestly erroneous ruling.” Surles ex
rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 293 (6th Cir. 2007).
The district court did not abuse its discretion in excluding Nogan from testifying about
biomechanical issues and human factors. Both of these fields are proper topics for expert
See Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303–05 (6th Cir. 1997)
(biomechanics), abrogated on other grounds by Morales, 151 F.3d 500; see also Winters v. FruCon Inc., 498 F.3d 734, 741 (7th Cir. 2007) (human factors). It thus follows that a witness
opining on these subjects must be qualified to do so. But Plaintiffs concede that Nogan has
admitted that he is not an expert in biomechanics or human factors—either by education or
training. See Appellants’ Br. at 15. Nogan might be able to apply some common sense to these
issues, but the district court would then be well within its rights to exclude this testimony. See
Dhillon v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001) (“We agree that such an
idea is based on common sense. This means, however, that the district court was well within
bounds to conclude that expert testimony on [this subject] . . . was inadmissible.”).
Nogan’s qualifications to opine on electrical issues present a much closer call. Contrary
to the district court’s suggestion, the mower’s seat switch is not a highly complex or “intricate”
electrical system. Burgett MSJ, 970 F. Supp. 2d at 681. And Plaintiffs only needed a witness
who met the “minimal qualifications” requirement—not one who could teach a graduate seminar
on the subject. Mannino v. Int’l Mfg. Co., 650 F.2d 846, 851 (6th Cir. 1981). If Plaintiffs had
put forward a lawnmower repairman, that person would likely have been qualified to opine on a
manufacturing defect, even if her educational background was lacking. See Berry, 25 F.3d at
1350; see also Rose v. Truck Ctrs., Inc., 388 F. App’x 528, 533–34 (6th Cir. 2010). (This was
the category that Defendants’ expert fell into, broadly speaking.) Similarly, if Plaintiffs’ expert
had a degree in electrical engineering, her qualifications would probably have sufficed, even
absent practical experience with lawnmowers. See Jahn v. Equine Servs., PSC, 233 F.3d 382,
389 (6th Cir. 2000); see also Palatka v. Savage Arms, Inc., 535 F. App’x 448, 454–55 (6th Cir.
Nogan does not easily fit into either of these categories. Nogan holds a degree in
mechanical engineering, is a forensic engineer and accident reconstructionist, and has
approximately 30 years of experience with various types of machinery. But Nogan had limited
training in electrical engineering, and not a great deal of practical experience. The question
before the district court was not whether Nogan was the best qualified expert Plaintiffs could
have called upon. See Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008). The district
court only had to decide if Nogan met Rule 702’s basic qualifications requirement. However, we
need not definitively resolve whether the district court abused its discretion in deeming Nogan
unqualified to testify on electrical issues. Even with Nogan’s testimony in the record, summary
judgment for Defendants was warranted.
DESIGN DEFECT CLAIM
We turn to the district court’s summary judgment decision, which we review de novo.
Shazor v. Prof’l Transit Mgmt., 744 F.3d 948, 955 (6th Cir. 2014). Summary judgment is
appropriate “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.” Fed. R. Civ. P. 56(a). “In reviewing the
district court’s grant of summary judgment, this Court must view all the facts and the inferences
drawn therefrom in the light most favorable to the nonmoving party.” Birch v. Cuyahoga County
Probate Ct., 392 F.3d 151, 157 (6th Cir. 2004).
“Kentucky has adopted Section 402A of the Restatement (Second) of Torts (1965).
Under Section 402A, the standard for imposing liability upon manufacturers or sellers of
products is whether the product is in a defective condition unreasonably dangerous to the user or
consumer.” Morales, 151 F.3d at 506 (quotation marks and citation omitted). “Liability may be
imposed on the manufacturer of a defective product under a variety of theories. Liability may
result from defective design, for manufacturing defects, and for failure to warn.” Clark v. Hauck
Mfg. Co., 910 S.W.2d 247, 250 (Ky. 1995) (citations omitted), overruled on other grounds by
Martin v. Ohio County Hosp. Corp., 295 S.W.3d 104 (Ky. 2009). “The plaintiff has the burden
 to establish causation under the substantial factor test—that is, plaintiff must prove that the
defendant’s conduct was a substantial factor in bringing about plaintiff’s harm.” King v. Ford
Motor Co., 209 F.3d 886, 893 (6th Cir. 2000).
“Kentucky applies a risk-utility test in design defect cases.” Toyota Motor Corp. v.
Gregory, 136 S.W.3d 35, 42 (Ky. 2004). The test in these cases is “whether an ordinarily
prudent company being fully aware of the risk, would not have put the product on the market.”
Id. (quotation marks and alterations omitted). Therefore, “design defect liability requires proof
of a feasible alternative design.” Id. Plaintiffs’ design defect claim must fail because they have
not satisfied this requirement, even if we consider Nogan’s testimony. The closest Nogan came
in his three expert reports was to point to a design contained in an expired patent. This design
concerned a push-mower started with a pull-cord. Nogan conceded that the design would not
work on motors started with a battery—a category that includes every riding mower currently on
the market. But Nogan posits that MTD should have been able to design some other seat switch
system based on the pull-mower technology. Nogan does not even begin to suggest what this
alternative design might be. In sum, Nogan’s hypotheticals do not satisfy Plaintiffs’ need to put
forward a proof of a feasible alternative design.1 See Nissan Motor Co. v. Maddox, --- S.W.3d ---, 2013 WL 4620488, at *6 (Ky. Ct. App. Aug. 30, 2013); Garlock Sealing Techs., LLC. v.
Robertson, No. 2009-CA-000483-MR, 2011 WL 1811683, at *3 (Ky. Ct. App. May 13, 2011).
MANUFACTURING DEFECT AND NEGLIGENT ASSEMBLY CLAIMS
We turn next to Plaintiffs’ interlinked claims of manufacturing defect (against MTD) and
negligent assembly (against Lowe’s). “Under Kentucky law, a manufacturing defect exists in a
product when it leaves the hands of the manufacturer in a defective condition because it was not
manufactured or assembled in accordance with its specifications.” Greene v. B.F. Goodrich
Avionics Sys., Inc., 409 F.3d 784, 788 (6th Cir. 2005).
Plaintiffs must prove that any
manufacturing defect was a substantial factor in bringing about the harm to Burgett. See id. As
for the negligence claim against Lowe’s, Kentucky law unsurprisingly requires Plaintiffs to
establish three elements to succeed: “(1) a duty on the part of the defendant; (2) a breach of that
duty; and (3) consequent injury.” Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247
Nogan was never able to precisely identify a manufacturing or assembling defect. Nogan
did identify one wire that had unusually high resistance, and suggested that any problems with
the seat switch could have been exacerbated if Lowe’s had not installed the replacement battery
In their reply brief on appeal, Plaintiffs mention—for the first time in this litigation—
two other alternative designs that Nogan has put forward. See Appellants’ Reply Br. at 12.
Nogan did not identify these alternative designs in any of his three expert reports, but rather
during his deposition. Plaintiffs did not raise these designs in their brief before the district court,
in the oral argument on the motion for summary judgment, or in their opening brief on appeal. It
is far too late for Plaintiffs to raise new arguments in an attempt to salvage an essential element
of one of their claims. See Barany-Snyder v. Weiner, 539 F.3d 327, 331–32 (6th Cir. 2008).
properly. But Nogan later expanded his diagnosis to some problem with the electrical system as
a whole. Furthermore, Nogan failed to replicate the fault that Burgett described, despite several
tests. Thus, even if we consider Nogan’s testimony, Plaintiffs’ defect theory boils down to res
ipsa loquitur. Burgett testified that the mower continued to run after he fell out of the driver’s
seat. A riding mower does not behave like this unless something is wrong with it.
Kentucky law allows a plaintiff to proceed on this type of circumstantial evidence. See
Holbrook v. Rose, 458 S.W.2d 155, 157–58 (Ky. 1970). But if Plaintiffs want to do so here, they
must “negate other possible causes for the failure of the [mower] to function properly,” Perkins
v. Trailco Mfg. & Sales Co., 613 S.W.2d 855, 858 (Ky. 1981), for which each respective
Defendant “would not be liable.” Siegel v. Dynamic Cooking Sys., Inc., 501 F. App’x 397, 401
(6th Cir. 2012). Plaintiffs’ own theory of the case makes this obstacle insurmountable. They
hypothesize that some defect existed in the seat switch system, or perhaps the problem was
created (or exacerbated) by Lowe’s when the mower’s battery was replaced. Plaintiffs have no
competent evidence by which a jury could find that MTD or Lowe’s was responsible for the
unidentified fault, much less evidence that the unidentified fault was a substantial factor in
bringing about Burgett’s injury. As we have stated in the past, “[w]here an incident could result
from more than one cause, plaintiff tips the balance from possibility to probability only by ruling
out other theories of causation: Where an injury may as reasonably be attributed to a cause that
will excuse the defendant as to a cause that will subject it to liability, no recovery can be had.”
In re Beverly Hills Fire Litig., 695 F.2d 207, 219 (6th Cir. 1982) (alteration and formatting
omitted) (quoting Sutton’s Adm’r v. Louisville & Nashville R.R., 181 S.W. 938, 940 (Ky. 1916)).
Both MTD and Lowe’s were entitled to summary judgment.
For these reasons, we AFFIRM the judgment of the district court.
STRANCH, Circuit Judge, concurring. I concur in the majority opinion—I agree that
even if Nogan’s testimony had been admitted, summary judgment for the Defendants was
appropriate. I write separately to address an issue not necessary to resolution of this case—the
apparent confusion here and in a number of cases regarding the admissibility of expert
This recurring issue arises at the intersection of the expert requirements of
qualification, relevance and reliability and the nature of our adversary system.
Consider this case. Nogan holds a degree in mechanical engineering, has been trained as
a forensic engineer and accident reconstructionist, and his 30 years of experience with machinery
large and small has included some work with the electrical systems in machinery. His CV
indicates that he has experience with electrical generator sets, electrical and noise control
engineering, and electro-mechanical interfaces. Is he qualified to assist the jury in understanding
whether a wiring problem in the mower might have led to the accident at issue? I think so.
Defendants argue that more is required but, as we have noted before, a generally experienced
expert’s “unfamiliarity with some specific aspects of the subject at hand merely affect[s] the
weight and credibility of [the] testimony, not its admissibility.”
Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 294 (6th Cir. 2007) (internal quotation marks omitted).
“An expert’s lack of experience in a particular subject matter does not render him unqualified so
long as his general knowledge in the field can assist the trier of fact.” Dilts v. United Grp.
Servs., LLC, 500 F. App’x 440, 446 (6th Cir. 2012), cert. denied, 133 S. Ct. 2022 (U.S. 2013).
Our sister circuits agree: “[I]t is an abuse of discretion to exclude testimony simply because the
trial court does not deem the proposed expert to be the best qualified or because the proposed
expert does not have the specialization the court considers most appropriate.” Pineda v. Ford
Motor Corp., 520 F.3d 237, 244 (3d Cir. 2008) (internal quotation marks omitted).
qualification inquiry does not ask which expert would be the best; Rule 702 simply asks whether
the expert proposed by the party is qualified “by knowledge, skill, experience, training, or
But being qualified as an expert is only the first step—the proposed expert must offer
testimony that is relevant and reliable. In Rose v. Truck Ctrs, Inc., 388 F. App’x 528 (6th Cir.
2010), the district court excluded the plaintiff’s expert, a truck mechanic, from giving testimony
on the cause of an accident, noting that the expert had never designed or manufactured a steering
gear for a truck. Because his testimony would assist the trier of fact to understand the evidence,
we found the expert qualified but affirmed exclusion because the expert’s testimony was not
sufficiently reliable. Id at 534–36. Perhaps reliability of the expert opinion was an issue below.
But the point is that the issue of qualification of the expert—will the expert’s testimony help the
trier of fact?—is a separate inquiry and should not be confused with the issue of the reliability of
the proposed testimony.
As to qualifications and reliability, moreover, the majority aptly reminds that “the trial
court’s role as a gatekeeper is not intended to serve as a replacement for the adversary system.”
Fed. R. Evid. 702 advisory comm.’s note, 2000 amend. (quotation marks omitted). In our legal
system, “rejection of expert testimony is the exception” not the rule, In re Scrap Metal Antitrust
Litigation, 527 F.3d 517, 530 (6th Cir. 2008), and credibility of an expert witness and weight to
give her testimony are matters entrusted to the trier of fact. As Daubert notes, “[v]igorous crossexamination, 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
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993).
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