Rudd v. General Motors Corp.

ORDER

In this civil action, plaintiff Douglas Norman Rudd brings suit to recover damages from defendant General Motors Corporation (“GM”) for injuries sustained when a fan blade on Rudd’s 1970 GM pickup truck broke loose and struck him while he was in front of the vehicle’s open hood. Jurisdiction over this diversity action is proper under 28 U.S.C.A. § 1332. This case is currently before the court on a summary-judgment motion by GM, which, for reasons set forth below, will be granted in part and denied in part.

I. BACKGROUND

On February 2, 2000, Rudd filed a complaint in this court seeking five million dollars in damages from GM as compensation for serious and permanently disabling injuries resulting from the separation and propulsion of his truck’s fan blade into his head, neck, and left arm while he was advancing the truck’s timing. Rudd contends that the fan is a GM product; that it was defective at the time GM manufac-. tured and placed it into the stream of commerce; and that the fan’s defects proximately caused his injuries. More specifically, Rudd alleges that GM is liable under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) on account of each of three fan-related defects: manufacturing flaws in the fan’s metal that rendered the fan vulnerable to “fatigue failure” over time; GM’s failure to equip the fan with a protective guard to shield people in the event of any blade separation; and GM’s failure to provide adequate warning about the risk of fan-blade separation. 1 Rudd also makes the argument that GM’s failure to equip the fan with a protective guard, as well as its failure to provide adequate warning about the risk of fan blade separation, constitutes negligence under Alabama law.

On October 10, 2000, GM moved for summary judgment against Rudd on both his AEMLD and negligence claims. GM argues that Rudd has produced no admissible evidence that would support an infer *1333 ence of a defect in the fan metal, and that he has not alleged sufficient facts to make out a prima-facie case for his lack-of-protective-shield and failure-to-warn claims. GM also contests the very notion that the fan is a GM product. However, on this last issue, GM concedes “there is a substantial dispute” and “for the purpose of this motion only GM has assumed that the cooling fan is a GM part.” 2 Thus, the only issues currently before the court relates to whether — assuming the accident fan is a GM part — there is enough admissible evidence to justify putting Rudd’s AEMLD and negligence claims before the factfin-der.

II. LEGAL STANDARDS

A. The AEMLD

The Alabama Supreme Court has expressly modeled its AEMLD on § 402A of the Second Restatement of Torts and the landmark line of common-law cases beginning with Judge Cardozo’s MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), that allow consumer tort recovery without privity of contract between a manufacturer and an injured party, and without direct proof of negligence in the manufacturing process. See Atkins v. American Motors Corp., 335 So.2d 134, 137-138 (Ala.1976); see also Restatement of the Law, Third, Torts: Products Liability, § 3, at 111. However, the Alabama doctrine departs somewhat from the Restatement’s strict-liability regime in retaining aspects of a fault-based system. See Atkins, 335 So.2d at 140. To affirm the importance of “moral culpability,” the AEMLD makes certain affirmative defenses and general denials available to defendant manufacturers. Id. at 137-139. Absent such defenses, however, culpable “scienter is supplied as a matter of law” when a plaintiff shows that a manufacturer placed a product into the stream of commerce that was unreasonably dangerous when put to its intended use. Id. at 141; see also id. at 140, 139. “[A] defendant is liable if he puts on the market a product which is not reasonably safe, and the plaintiff is injured as a result of a contemplated use of that product.” Id. at 140; see also Taylor v. General Motors Corp., 707 So.2d 198, 201 (Ala.1997).

“To establish liability:

(1) A plaintiff must prove he suffered injury or damages to himself or his property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if

(a) the seller was engaged in the business of selling such a product, and

(b) it was expected to, and did, reach the user or consumer without substantial change in the condition in which it was sold.”

Atkins, 335 So.2d at 141; see also Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469-470 (11th Cir.1993); Jordan v. General Motors Corp., 581 So.2d 835 (Ala.1991); Casrell v. Altec Industries, Inc., 335 So.2d 128, 132 (Ala.1976).

For purposes of the AEMLD, “a ‘defect’ is that which renders a product ‘unreasonably dangerous,’ i.e., not fit for its intended purpose.” Casrell, 335 So.2d 128, 133 (internal citations omitted). “[I]t makes no difference whether [a product] is dangerous by design or defect. The important factor is whether it is safe or dangerous when the product is used as it was intended to be used. However, danger may be obviated by an adequate warning.” Id. The question “Whether a product is ‘unreasonably dangerous’ is for the trier of fact.” Id.

B. Admissibility of Expert Testimony

The Federal Rules of Evidence govern the admissibility of expert testimony. See Daubert v. Merrell Doio Pharmaceuticals, Inc., 509 U.S. 579, 587, 113 S.Ct. *1334 2786, 2793, 125 L.Ed.2d 469 (1993). Under the federal rules, the trial judge serves a gatekeeping function, making both a ‘relevance’ and a ‘reliability’ determination, that is, disallowing expert testimony when it will not be helpful to the trier of fact or when it lacks a reliable foundation. See id. at 589, 113 S.Ct. at 2795; Fed.R.Evid. 702; id., advisory committee notes, 2000 amendment; see also Fed.R.Evid. 104(a) (preliminary questions of admissibility shall be determined by the court which, in making its determination is not itself bound by all the exclusionary rules of evidence). 3 A trial judge performs this ga-tekeeping function by applying the Federal Rules of Evidence, especially Rule 702. Rule 702, as amended effective December 1, 2000, provides:

“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.”

The burden is traditionally placed on the proponent of expert testimony to establish that such admissibility requirements have been met by a “preponderance of the evidence.” See Bourjaily v. United States, 483 U.S. 171, 172-173, 107 S.Ct. 2775, 2776-2777, 97 L.Ed.2d 144 (1987) (while Rule of Evidence 104(a) assigns the court the task of determining preliminary admissibility questions without specifying any particular standard of proof of reliability, a preponderance-of-proof standard is traditionally imposed regardless of the *1335 burden of proof on the substantive issues); Allison v. McGhan Medical Corporation, 184 F.3d 1300, 1312 (11th Cir.1999) (“the proponent of the testimony does not have the burden of proving that it is scientifically correct, but that by a preponderance of the evidence, it is reliable”); Fed.R.Evid. 702, advisory committee notes, 2000 amendment.

According to the advisory committee notes, Rule 702 was amended, effective December 1, 2000, in order expressly to endorse the gatekeeping model of the trial judge envisioned by the Supreme Court in Daubert. This judicial screening of expert testimony before it reaches the factfinder is justified by the fact that expert witnesses are given wider latitude to offer opinions than that afforded other witnesses under the federal rules, including, for example, a relaxation of the usual requirement of firsthand knowledge. See Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. The trial judge’s gatekeeping inquiry, when properly conducted, avoids usurping the role of the trier of fact, said the Dau-bert court, because the court’s “focus ... must be solely on principles and methodology, not on the conclusions that they generate.” Id. at 595, 113 S.Ct. at 2797.

In Daubert, the Supreme Court set forth a list of factors that may guide the trial judge’s Rule 702 decision as to whether expert testimony might reliably assist the factfinder, including: whether a theory or technique can be or has been tested; whether a theory or technique has been subjected to peer review or publication; whether a theory or technique has gained widespread acceptance within a relevant community of experts, or, rather, has been unable to garner more than minimal support; and the known or potential rate of error of a technique, and the existence and maintenance of standards controlling the technique’s operation. See id. at 593-594, 113 S.Ct. at 2796-2797.

These Daubert factors are not, the Supreme Court has emphasized, appropriately used as a “definitive checklist” but should instead be understood as non-exclusive, nondispositive considerations that may shape the trial judge’s “flexible inquiry” under Rule 702. See id. at 594, 113 S.Ct. at 2797; see also Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (the trial judge must have considerable leeway in deciding how to go about determining whether particular expert testimony is reliable but should consider the specific factors identified in Daubert where they are reasonable measures of reliability); United States v. Paul, 175 F.3d 906, 910-911, (11th Cir.1999) (affirming the admission of a handwriting expert’s testimony without specifically applying or reviewing the Dau-bert factors, and explaining that “Dau-bert’s list of specific factors neither necessarily nor solely applies to all experts or in every case”); United States v. Cunningham, 194 F.3d 1186, 1194 (11th Cir.1999); United States v. Zapata, 139 F.3d 1355, 1357 (11th Cir.1998). Consistent with this understanding, the advisory committee notes for Rule 702 explain that the 2000 amendment, while intended as an endorsement of the Daubert conception of the trial judge as gatekeeper, was not intended to “codify” the specific factors mentioned in Daubert.

In Kumho, an automobile-products liability case, the Supreme Court clarified that the trial court’s Rule 702 gatekeeping responsibilities obtain equally for all expert testimony, not just scientific testimony. 526 U.S. at 142, 119 S.Ct. at 1171. The Kumho Court held that the trial judge below did not abuse his discretion when he excluded the technical or engineering testimony of a tire-failure analyst under a Dau- freri-type inquiry into reliability. See id. at 158, 119 S.Ct. at 1179. The trial judge had found the depositions of the plaintiffs would-be expert witness to be riddled with internal inconsistencies and had determined that, in light of the four Daubert factors, the expert’s theory “fell outside the range where experts might reasonably differ” and was, thus, too unreliable to be *1336 allowed before the jury. See id. at 142-146, 153-158, 119 S.Ct. at 1167-1173, 1176-1179.

While Kumho affirmed the potential applicability of the Daubert factors to testimony that is technical-, engineering-, or experience-based, the Kumho Court also made it clear that a trial court should tailor its Rule 702 evaluation to the particular circumstances before it, and that the Daubert-type analysis should not be used to disfavor expert testimony grounded in experience or engineering practice rather than in pure scientific theory:

“Engineering testimony rests upon scientific foundations, the reliability of which will be at issue in some cases. In other cases, the relevant reliability concerns may focus upon personal knowledge or experience.... [Tjhere are many different kinds of experts, and many different kinds of expertise. Our emphasis on the word ‘may’ [in the question presented, whether a trial judge may apply the Daubert factors to nonscientific testimony] thus reflects DaubeH’s description of the Rule 702 inquiry as a flexible one.... [T]he ga-tekeeping inquiry must be tied to the facts of a particular case.”

Id. at 150, 119 S.Ct. at 1175 (internal citations and quotations omitted).

The advisory committee notes for Rule 702, as amended effective December 1, 2000, comment that the amended rule was formulated in part to affirm Kumho’s holding that the trial judge’s gatekeeper function applies to all expert testimony. But the newly-expanded rule goes further than Kumho to “provide[] some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony.” Id. (emphasis added). While there is a dearth of caselaw interpreting the new reliability standards set forth in Rule 702 (that “(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”), 4 the advisory committee notes provide some guidance, remarking that

“Nothing in this amendment is intended to suggest that experience alone — or experience in conjunction with other knowledge, skill, training or education— may not provide a sufficient foundation for expert testimony.... If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court’s gatekeeping function requires more than simply taking the expert’s word for it.”

Id. (internal citations and quotations omitted).

While the inquiry into “reliable principles and methods” has been a familiar feature of admissibility analysis under Daubert, the new Rule 702 appears to require a trial judge to make an evaluation that delves more into the facts than was recommended in Daubert, including as the rule does an inquiry into the sufficiency of the testimony’s basis (“the testimony is based upon sufficient facts or data”) and an inquiry into the application of a methodology to the facts (“the witness has applied the principles and methods reliably to the facts of the case”). 5 See Daubert, *1337 supra; Fed.R.Evid. 702; Richard T. Stilwell, Kumho Tire: The Battle of the Experts Continues, 19 Rev. Litig. 193, 210-213 (Spring 2000). Neither of these two latter questions that are now mandatory under the new rule — the inquiries into the sufficiency of the testimony’s basis and the reliability of the methodology’s application — were expressly part of the formal admissibility analysis under Daubert.

However, while this court can find no caselaw precisely implementing these kinds of analyses, the amended rule’s reliability-of-application inquiry was at least foreshadowed in General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), where the Supreme Court suggested that Daubert’s distinction between factual conclusions and methodology might be too sharply-drawn. See Joiner, 522 U.S. at 146, 118 S.Ct. at 519 (in some cases a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered”); see also Fed.R.Evid. 702, advisory committee notes, 2000 amendment (discussing Joiner and stating that the revised version of Rule 702 incorporates a conscious rejection of Daubert’s sharply-drawn conclusions-versus-methodology distinction).

Going beyond the permissive language of Joiner, the plain language of new Rule 702, as well as the advisory committee notes to the new Rule, makes it clear that this court is now obliged to screen expert testimony to ensure it stems from, not just a reliable methodology, but also a sufficient factual basis and reliable application of the methodology to the facts. Despite this express provision for judicial evaluation of such factually-entwined matters, however, the advisory committee notes caution that the trial judge must still avoid usurping the role of the trier of fact:

“[The revised rule] is not intended to authorize a trial court to exclude an expert’s testimony on the ground that the court believes one version of the facts and not the other.... [T]he rejection of expert testimony is the exception rather than the rule. Daubert did not work a seachange over federal evidence law, and the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system. 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.”

Fed.R.Evid. 702, advisory committee notes, 2000 amendment (internal citations and quotations omitted).

C. Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “Where, as here, the non-moving party bears the burden of proof on an issue at trial, the moving party, in order to prevail, must do one of two things: show that the non-moving party has no evidence to support its case, or *1338 present ‘affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial.’ ” Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir.1994) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir.1991) (en banc)); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993) (describing the responsibilities of the summary judgment movant and non-movant as dependent upon the burden of proof at trial).

Once the party seeking summary judgment has informed the court of the basis for its motion, the burden shifts to the non-moving party to demonstrate why summary judgment would be inappropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). To this end, the non-moving party must affirmatively set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of his or her pleadings. See Fed. R.Civ.P. 56(e).

The court’s role at the summary-judgment stage is not to weigh the evidence or to determine the truth of thé matter, but rather to determine only whether a genuine issue exists for trial. See Anderson v. LibeHy Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In making this determination, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in its favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

III. DISCUSSION

A. Admissibility of Rudd’s Proposed ExpeH Testimony Regarding a Defect in the Fan Metal

“[Ojrdinarily, expert testimony is required” in AEMLD cases, Sears, Roebuck & Co., Inc. v. Haven Hills Farm, Inc., 395 So.2d 991, 995 (Ala.1981), and Rudd has met this expectation by offering three expert witnesses, Preston Brazell, Semih Genculu, and Harry Edmondson. Brazell is an automotive mechanic with over 30 years experience and training in the repair and rebuilding of motor vehicles, especially GM products; Genculu is a metallurgist and materials engineer with extensive experience in failure analysis and materials testing; and Edmondson is a mechanical engineer with extensive experience in the field of failure analysis.

In the pretrial order, GM has specifically objected to the admission of Edmondson’s opinion that a manufacturing defect caused the fan-blade separation, and, more generally, the company has requested an admissibility hearing for any testimony by any of Rudd’s experts that implicates an opinion that the fan or truck was defective. 6 Genculu’s testimony does include evidentiary claims bearing on the “defect” issue. This court will not, however, discuss Genculu’s testimony because it is not necessary for resolving the present motion for summary judgment, and because it is unclear whether GM has any specific objections that will remain viable in light of this court’s Rule 702 discussion. *1339 If GM continues to have admissibility objections (or if Rudd has objections to GM’s expert testimony), such may be raised in specific form at a later date. See Reference Manual on Scientific Evidence, Second Edition, 28-29 (“In civil cases, a court might respond to a motion in limine by refusing to undertake any reliability-relevancy determination until the movant has made a prima facie showing of specific deficiencies in the opponent’s proposed testimony.”)

GM makes it clear that it does not question the competence of any of Rudd’s expert witnesses or the relevance of their opinion testimony: “GM’s motion does not challenge the qualifications of plaintiffs experts or the fact that they have offered opinions on certain issues....” 7 Rather, GM’s evidentiary challenge appears to be limited to a sufficiency-of-basis objection that there is an “admitted lack of evidence” to support Rudd’s expert testimony regarding a fan-metal defect. 8

Under Daubert, Joiner, and old Rule 702, it might be a close question whether a factual sufficiency-of-basis inquiry like that requested by GM should even be part of a trial judge’s gatekeeping decision. Under the newly-amended Rule 702, however, a “quantitative” inquiry into whether “the testimony is based upon sufficient facts or data” is not only permissible but expressly mandated. See Fed.R.Evid. 702; Fed. R.Evid. 702, advisory committee notes, 2000 amendment. Thus, the admissibility analysis in this case will vary depending upon whether this court should apply the new rule, in whole or in part, or rather should fall back on old Rule 702. Rudd’s complaint commenced on February 2, 2000, that is, prior to December 1, 2000, the effective date of the amendment. But the new Rule 702 “shall govern all proceedings in civil cases” pending December 1, 2000, “insofar as just and practicable.” Orders of the Supreme Court of the United States Adopting and Amending Rules, Order of April 17, 2000.

In the present case, pending as it was December 1, this court finds that it is “just and practicable” to employ new Rule 702 to judge the admissibility of at least the testimony specifically challenged by GM, that is, Edmondson’s statements relating to a manufacturing defect in the fan metal. First, even though the testimony in the record of all three of Rudd’s experts was given prior to December 1, GM’s contentions in the pretrial order include a reference to the new Rule 702, and no objection to its application was registered. 9 More important, this court finds that neither party’s case suffers for the court’s use of the amended rule. With new Rule 702 in play, GM gets a judicial-gatekeeping inquiry governed by a rule that contains all of the language of the old rule plus new language expressly authorizing GM’s sufficiency-of-basis objection, that is, a line of inquiry that might not even have been available under old Rule 702. And Rudd’s case is not unduly prejudiced because— despite the fact his submissions to the court were evidently prepared with only the old rule in mind 10 — Edmondson’s testimony regarding a fan-metal defect turns out to satisfy the new standards.

*1340 The aspects of Edmondson’s testimony that relate to the possibility of a fan defect (gleaned from his Rule 26 report and especially his deposition) can be summarized as follows. Edmondson’s ‘opinion number one’ is that Rudd’s operation of his truck prior to the accident was normal behavior. 11 This opinion is based on Rudd’s testimony that, at the time of the accident, he was running his engine at about 1200 to 1500 RPM’s while twisting the housing of the distributor in order to adjust the timing. 12 Edmondson testified that 1200 to 1500 RPM’s is within normal engine-speed ranges, and that setting a vehicle’s timing by twisting the distributor is both a method that Edmondson himself has used and a method specifically recommended by GM tune-up manuals. 13

Edmondson’s ‘opinion number two’ is that the fan blade was not bent prior to the accident, and that no visible damage in the fan could explain the fatigue fracture that led to the blade separation. Based on visual examination, “total indicator reading” measurements, and his background reading, Edmondson determined that there was some warping of the fan assembly, that is, “either the shaft [attached to the water pump] or the pulley was bent,” a kind of warping that can be explained by use or time. 14 He emphasized that he “did not claim there was no damage to the fan assembly,” and was not excluding the possible existence of “any kind of little nick or dent.” 15 Edmondson “[held] the fan blade in position [where it had been attached] and look[ed] for any evidence that the fan blade had been bent ... and didn’t see any of that,” including especially at the site of the fracture origin. 16

Edmondson offered an ‘opinion number three’ that Rudd’s pre-accident operation of his truck would not have caused a non-defective fan to break, an opinion which he later expanded into a conclusion with a “reasonable degree of engineering eertainty” that the fan blade must have been marred by a microscopic defect. 17 He began his explanation of this conclusion by remarking:

“I think that the fan blade had to have some small defect for the fatigue failure to start. As to whether it was a machine mark left during the manufacturing process or whether it was whatever, it was right where—it had to be right here because the maximum bending stress on this blade is at the base of it because the fan is pushing air and the load is out here and the load times the distance, the maximum stress is going to be right here where it attaches (indicating). The opposite blade is coming across there and providing more or less a stop or a pivot for the blade to bend around. So there has to be some small defect or some small something for the fracture or for the fatigue crack to start at.” 18

Edmondson then rehearsed a list of the reasons a metal-fatigue fracture might occur: (1) the nature of the material itself, if the metal were composed of high-strength alloys, as is not the case with the accident fan; (2) a grind mark or microscopic-level scratch or imperfection that might be left during the manufacturing process; and (3) disruption in the cast material, if the component is a cast product, “where there’s either an inclusion of some sort that amounts to a stress riser or it could be a *1341 gas bubble that amounts to a stress riser.” 19

When pressed, Edmondson explained that these three explanations are those he has encountered in his experience as a metal-failure analyst but that they are not the only possible explanations for metal-fatigue fractures in every kind of metal. 20 Edmondson felt he could exclude the possibility of a catastrophic or abnormal-use cause for the accident-fan’s fatigue fracture because a “one-time overload fracture”, that is, a different kind of fracture from the stress fracture on Rudd’s fan, would result from any stress load or vibration level beyond that associated with the fan’s designed capability. 21 If the fan were defective as a result of “some force, object, accident,” the fan’s surface would have dis-cernable marks indicating such an occurrence, and there are no such marks. 22 Edmondson could offer no direct evidence that the fan metal had inappropriate materials, inclusions, microscopic-level scratches, or other imperfections. 23 But that lack did not detract from his confidence “to a reasonable degree of engineering certainty” that the fan metal contained some such microscopic defect (either a scratch or mark or an inclusion) because he had gone through a process of eliminating the alternative explanations. 24

Once he narrowed down the explanations to those involving a microscopic defect, Edmondson further considered and eliminated various ways that the fracture might have resulted from a microscopic defect placed on the fan during its operation, that is, subsequent to the manufacturing process:

“[If] somebody had a file or they scratched it using a wire brush or ... they bent it, that would work harden a particular area.... [I]f I never found anything like that [ie., direct evidence of a manufacturing defect], how could I possibly list that as the cause of it.... And the reason is I think that there has to be some small irregularity that initiates the fatigue.... A manufacturing defect can be distinguished from a defect incurred later during operation.... [T]he defect that would come on to it during its operation typically would not have the same form as the one put on there in manufacturing. Manufacturing is using a stamping machine to stamp out the blades. It’s using another stamping machine to form the shape of the blades. And I’m guessing that the holes were punched out on a dye and tool arrangement.... The sort of damage that it would get in usage would be, one, the more obvious is that somebody leaned into it and bent it and then saw that they had bent it and bent it back, so it had been overloaded. In other words, it got past its elastic limit and was actually bent to a new position and then bent back to the original position which would be dama