Christopher Hanshaw v. Crown Equipment Corp.

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
CHRISTOPHER HANSHAW, )
)
Appellant, )
)
v. ) WD86389
)
CROWN EQUIPMENT CORP., ET AL, ) Filed: April 1, 2025
)
Respondent. )
Appeal from the Circuit Court of Jackson County
The Honorable Joel P. Fahnestock, Judge
Before the Court En Banc: Anthony Rex Gabbert, C.J., and
Lisa White Hardwick, Alok Ahuja, Mark D. Pfeiffer, Karen King Mitchell,
Cynthia L. Martin, Gary D. Witt, Edward R. Ardini, Jr.,
Thomas N. Chapman, W. Douglas Thomson, and Janet Sutton, JJ.

Christopher Hanshaw was involved in a forklift accident in August 2016,

which resulted in the amputation of his left leg below the knee. Hanshaw sued
the manufacturer of the forklift, Crown Equipment Corporation, in the Circuit
Court of Jackson County. Hanshaw alleged that Crown’s forklift was defectively
designed. Hanshaw retained an expert witness, who opined that the forklift was
unreasonably dangerous because it lacked a door which would have prevented
Hanshaw’s leg from exiting the forklift’s operator compartment, and would thus
have prevented his injury. The circuit court granted Crown’s motion to exclude
Hanshaw’s expert. The court found that Hanshaw’s expert was not sufficiently
qualified, and that his opinions were not reliable. Based on its exclusion of
Hanshaw’s expert, the court then granted Crown’s motion for summary judgment

on Hanshaw’s negligence and strictly liability design defect claims.
Hanshaw appeals. We conclude that Hanshaw’s proffered expert was
sufficiently qualified, and that his opinions were reliably based on his education,

experience, and analysis of the evidence in this case. We accordingly reverse the
circuit court’s order excluding Hanshaw’s expert from testifying, as well as its
grant of summary judgment to Crown based on the exclusion order. The case is

remanded to the circuit court for further proceedings on Hanshaw’s product
defect claims.

Factual Background
In August 2016, Hanshaw was employed by Valu Merchandisers, a
subsidiary of Associated Wholesale Grocers, in Fort Scott, Kansas. He worked in
a warehouse.

On August 25, 2016, Hanshaw was operating a Crown RC5500 stand-up
forklift. The RC5500 is a “side-stance” forklift, in which the operator stands
facing to the left, perpendicular to the direction of travel. Because of this side-

stance orientation, the forklift’s operator can view both the front and back of the
forklift with a turn of the head, whether the forklift is traveling with the “forks
forward,” or with the “forks trailing” (i.e., the “reverse” direction).
The operator compartment of Crown’s forklift is enclosed on three sides,
but is open toward the rear of the forklift, where the operator’s left leg is
positioned. Although Crown had previously supplied Ford Motor Company with

side-stance forklifts with a door fully enclosing the operator compartment, the

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forklift Hanshaw was operating was not equipped with any type of door on its
rear-facing side. Crown contends that the addition of a rear door on the forklift

would increase the risk of injury, because a door would prevent the forklift’s
operator from quickly exiting from the operator compartment in the event the
forklift were to tip over, or fall off a loading dock (what are known as “stability”

accidents).
Hanshaw testified that his accident occurred on August 25, 2016, while he
was operating a Crown RC5500 forklift in the forks-trailing direction. He

testified that he attempted to stop the forklift by lifting his left foot off a “dead
man’s” brake pedal on the floor of the operator compartment. (While Hanshaw
described this maneuver as “plugging,” “plugging” is a different method of
slowing or stopping a forklift.) Hanshaw alleged that the forklift did not respond
to his actions, and struck a metal pole. As the forklift was traveling, Hanshaw’s
left leg came out of the operator compartment, and his left foot was crushed

between the forklift and the pole. As a result of his injuries, Hanshaw’s left leg
was amputated below the knee.
In August 2018, Hanshaw filed suit in the Circuit Court of Jackson County

against Associated Wholesale Grocers, Crown, and the distributors of the forklift.
(Hanshaw voluntarily dismissed his claims against Associated Wholesale Grocers
and the forklift’s distributors, and they are not involved in this appeal.) The
circuit court granted Hanshaw leave to file a First Amended Petition in March
2020.
Hanshaw’s First Amended Petition alleged that Crown negligently designed

the forklift, and had negligently failed to warn users of the forklift’s dangers. He

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also asserted strict liability claims alleging that the forklift was defectively
designed and manufactured, and that Crown had failed to adequately warn users.

Hanshaw sought to recover both compensatory and punitive damages.
To support his design defect and failure to warn claims, Hanshaw retained
Expert.1 Expert opined that Crown’s forklift was negligently designed and

unreasonably dangerous, because it failed to include a door to fully enclose the
operator compartment. Expert also opined that Crown should not sell its stand-
up side-stance forklifts for general warehousing uses, but should instead offer its

customers other types of material handling equipment. Finally, Expert opined
that Crown should add a rear bumper to its stand-up forklifts. Expert did not
proffer any opinions relating to the adequacy of the warnings provided with the
forklift.
Hanshaw filed a motion to apply Missouri damages law, and Kansas
liability law, to the claims asserted in his petition. The circuit court granted that

motion in December 2022, and that ruling is not challenged on appeal.
On December 19, 2022, Crown filed a motion for summary judgment, and
simultaneously filed a motion to exclude Expert’s testimony. Crown’s exclusion

motion argued that Expert is not qualified to provide any opinion relating to the
adequacy of the design of Crown’s forklifts, and that Expert’s opinions are not
reliable. Crown’s motion for summary judgment contended that, because of “the
complex mechanical nature of the forklift and its design components,” expert

1 Section 509.520.1, RSMo Cum. Supp. 2024, provides that “any judgments
or orders issued by the court . . . shall not include the following confidential and
personal identifying information: . . . (5) Witness information, including the name,
address, and other contact information of the witness.” As required by the statute, this
opinion does not identify Hanshaw’s retained expert by name.

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testimony was necessary to support Hanshaw’s design defect claims. Crown
argued that, if Expert’s opinions were excluded, then it was entitled to summary

judgment on the merits of Hanshaw’s claims. Crown’s summary judgment
motion separately argued that, even if Hanshaw could otherwise establish the
existence of triable issues on his design defect claims, Crown was entitled to

summary judgment concerning Hanshaw’s prayer for punitive damages.
The circuit court granted Crown’s motion to exclude Expert’s testimony in
an order entered on June 5, 2023. In finding Expert’s testimony to be

inadmissible, the circuit court relied heavily on an unpublished federal district
court decision excluding Expert’s opinions, which had been issued thirteen years
earlier in another products liability case involving a forklift. Newell Rubbermaid,
Inc. v. Raymond Corp., No. 5:08CV2632, 2010 WL 2643417 (N.D. Ohio July 1,
2010). With respect to Expert’s qualifications, the circuit court noted that,

[s]ince the Newell case, [Expert] obtained a license to operate
a forklift, but still does not have extensive experience operating it
and no experience operating it in the field. He was trained by his
employer and the remainder of his training was self-taught. He
trained one or two people to drive the forklift, but they were also
employees at his office. He still has not designed a forklift or any
component part for any piece of handling equipment. He also has
not attended any [American Society of Mechanical Engineers (or
“ASME”)] meetings or proffered to it alternative designs. Finally, he
does not refer to himself or hold himself out as a biomechanical
engineer.
The circuit court also concluded that, as in the Newell case, Expert’s
opinions concerning a defect in the forklift’s design were unreliable because his
methodology was unsound. The court explained:

[H]ere [Expert] has conducted no injury potential testing on his
proffered design alternatives. He cannot point to any door design or

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bumper he has developed, prototyped, or tested, or any testing to
measure the injury potential to stand-up forklift operators in off-
dock and tip-over accidents on forklifts equipped with a door or
bumper. Like in Newell, [Expert] conducted acceleration testing and
additionally here he also evaluated egress times from stand-up
forklifts, but not on the forklift at issue. No evidence was presented
that he performed any tests to see if the alternative designs are both
economically feasible and just as safe or safer than the model
without the door. With respect to the testing conducted by [Expert],
he has not shown the reliability of this testing and how it relates to
and supports his proffered designs.
Because Expert had “testified he would not come to trial with an opinion

regarding warnings,” the circuit court found that he was not competent to offer
opinions on that subject either.
Following its ruling excluding Expert’s opinions, the circuit court granted
Crown’s motion for summary judgment the next day. Because it granted
summary judgment to Crown on all of Hanshaw’s claims, the circuit court did not
separately address Crown’s motion for summary judgment on Hanshaw’s prayer

for punitive damages.
Hanshaw appeals.

Discussion
I.
In his first two Points Relied On, Hanshaw contends that the circuit court
erroneously determined that Expert was unqualified to offer expert opinions
concerning the design of Crown’s forklift, and that Expert’s design defect
opinions were unreliable. We agree.
“We review the circuit court’s decision to exclude expert testimony for an
abuse of discretion.” Campbell v. Union Pac. R.R. Co., 616 S.W.3d 451, 474 (Mo.
App. W.D. 2020).

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The admissibility of Expert’s testimony is governed by § 490.065.2,2 which
provides in relevant part:

(1) A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) The expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles
and methods; and
(d) The expert has reliably applied the principles and
methods to the facts of the case[.]
The test for admissibility codified in § 490.065.2 can be “boil[ed] . . . down
to its essence in a useful three-part test: (1) whether the expert is qualified,
(2) whether the testimony is relevant, and (3) whether the testimony is reliable.”
State ex rel. Gardner v. Wright, 562 S.W.3d 311, 319 (Mo. App. E.D. 2018)

(citations omitted).
“Section 490.065.2 adopts the Federal Rules of Evidence word-for-word
. . . .” Id. at 317. This Court has recognized that Federal Rule of Evidence 702, on

which § 490.065.2 is patterned, “reflects an attempt to liberalize the rules
governing the admission of expert testimony.” Jones v. City of Kansas City, 569
S.W.3d 42, 56 (Mo. App. W.D. 2019) (cleaned up), overruled on other grounds by
Wilson v. City of Kansas City, 598 S.W.3d 888, 895-96 (Mo. 2020).

2 Statutory citations refer to the 2016 edition of the Revised Statutes of
Missouri, updated by the 2024 Cumulative Supplement.

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Missouri courts have stated that under § 490.065.2, circuit courts must act
as “gatekeepers” to prevent irrelevant or unreliable expert testimony from being

presented at trial. See, e.g., Gebhardt v. Am. Honda Motor Co., 627 S.W.3d 37,
44 (Mo. App. W.D. 2021) (quoting Ingham v. Johnson & Johnson, 608 S.W.3d
663, 700 (Mo. App. E.D. 2020)). Our decisions also make clear, however, that a

pre-trial motion to exclude expert testimony is no substitute for the trial itself.

The trial court’s role as gatekeeper is not intended to serve as a
replacement for the adversary system. In deciding whether to admit
an expert’s testimony, the circuit court is required to ensure that all
of the statutory factors are met; however the court is not required to
consider the degree to which they are met. 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.
Ingham v. Johnson & Johnson, 608 S.W.3d 663, 701-02 (Mo. App. E.D. 2020)
(cleaned up).

The Missouri Supreme Court has instructed that, “‘[s]o long as the expert is
qualified, any weakness in the expert’s knowledge is for the jury to consider in
determining what weight to give the expert.’” Linton by Linton v. Carter, 634

S.W.3d 623, 628 n.5 (Mo. 2021) (quoting Kivland v. Columbia Orthopaedic Grp.,
LLP, 331 S.W.3d 299, 311 (Mo. 2011)); see also, e.g., Ingham, 608 S.W.3d at 701;
Crowder v. Ingram Barge Co., 681 S.W.3d 641, 646 (Mo. App. E.D. 2023) (“If
the expert is sufficiently qualified, . . . the decision to accept his or her analysis of
the facts and data is for the jury to decide.” (citations omitted)); Revis v.
Bassman, 604 S.W.3d 644, 655 (Mo. App. E.D. 2020); State v. Marshall, 596
S.W.3d 156, 161 (Mo. App. W.D. 2020).

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In sum, “[a]s long as an expert’s testimony rests upon good grounds, based
on what is known, it should be tested by the adversary process with competing

expert testimony and cross-examination, rather than excluded by the court at the
outset.” Jones, 569 S.W.3d at 56 (cleaned up).

II.
We first address whether Expert was “qualified as an expert by knowledge,
skill, experience, training, or education” within the meaning of § 490.065.2(1).
Because Expert’s education, training, and experience abundantly qualify him to

testify concerning the design and operation of Crown’s forklift, we conclude that
the circuit court abused its discretion in finding Expert to be unqualified.
Expert is a registered professional engineer with bachelor’s and master’s
degrees in mechanical engineering. He is board certified in forensic engineering,
and is accredited as an accident reconstructionist. Expert has studied the design
and safety of stand-up forklifts for more than fifteen years. During that time, he

has been a co-author of six peer-reviewed, published articles concerning the
design, operation and safety of stand-up forklifts. One paper examined the
frequency and severity of various types of accidents involving Crown’s stand-up

forklifts, based on a review of multiple years’ worth of accident reports filed with
the federal Occupational Safety and Health Administration (or “OSHA”).
Another article which Expert co-authored studied the acceleration and
deceleration forces which are generated in operation of stand-up forklifts, which
can cause operators to lose their balance, and can cause their limbs to be ejected
from the open operator compartment. A third paper studied the relative times it

took for operators to exit from stand-up forklifts with and without compartment

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doors; this article tested the industry’s main objection to the installation of doors
on stand-up forklifts.

The following passage from Expert’s deposition summarizes the testing he
has conducted involving stand-up forklifts like the one Hanshaw was operating at
the time of his accident:

I’ve done performance testing of forklifts, including the lateral
and longitudinal acceleration of forklifts as they are in operation and
during braking and steering. I’ve conducted testing of collisions of
stand-up rider forklifts and evaluated the horizontal intrusion
guarding of those forklifts. I’ve conducted testing to evaluate the
acceleration and speeds during those type of collisions. I’ve
evaluated egress times and egress testing from stand-up rider
forklifts utilizing an operator compartment guard.
In addition, Expert testified that, working with a more senior colleague, he
had been involved in “between 15 and 30” legal matters involving injuries
resulting from the operation of stand-up forklifts. In those cases, as here, Expert

and his colleague took the position that “a stand-up rider forklift should be
equipped with an operator equipment guard or door.”
Expert also has practical experience operating stand-up forklifts. He is

licensed to operate a stand-up forklift, and has operated stand-up forklifts
manufactured by multiple different companies for between 25 and 50 hours.
Expert has also been certified to train others to operate stand-up forklifts, has
trained two other individuals, and has compiled training materials for purposes
of teaching others how to operate such equipment.
Federal courts have permitted experts with similar, or lesser, qualifications
to offer precisely the same design defect opinions as Expert. In Anderson v.
Raymond Corp., 61 F.4th 505 (7th Cir. 2023), the United States Court of Appeals

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for the Seventh Circuit recently reversed a district court’s exclusion of an expert
who offered an opinion identical to Expert’s: that a stand-up forklift was

defective because of its failure to fully enclose the operator compartment with a
rear door. In finding the expert to be qualified, Anderson noted his graduate
education in mechanical engineering, the expert’s possession of “a license to

operate a stand-up forklift like that at issue here,” and the fact that the expert had
“spent most of his professional career” as a forensic engineer, “investigating
machine accidents and performing accident reconstructions.” Id. at 509. Unlike

Expert, the expert in Anderson had “limited experience with forklifts.” Id. The
Court held this was irrelevant: “An expert’s specialization or lack thereof
typically goes to the weight to be placed on [his] opinion, not its admissibility.
Ordinarily, courts impose no requirement that an expert be a specialist in a given
field.” Id. (cleaned up).3 Expert was substantially more qualified than the expert
at issue in Anderson.

The circuit court found that Expert was not qualified for the following
reasons:

3 Other federal cases reach the same result as Anderson. See, e.g., Jones v.
Raymond Corp., 2023 WL 309055, at *4 (N.D. Miss. Jan. 18, 2023) (finding same
expert at issue in Anderson to be qualified to offer similar opinions; noting that,
“although [expert] may not have specifically specialized in stand-up lift trucks, he has
experience in engineering design, product design, accident investigation, and accident
reconstruction.”); McHale v. Crown Equip. Corp., 2021 WL 289346, at *2-*5 (M.D. Fla.
Jan. 28, 2021) (same); Hernandez v. Crown Equip. Corp., 92 F. Supp.3d 1325, 1345
(M.D. Ga. 2015) (expert qualified where he possessed bachelor’s and master’s degrees in
mechanical engineering, and “has conducted over two hundred investigations dealing
with injuries to drivers of stand-up forklifts, and has reviewed thousands of accident
reports from various forklift manufacturers, OSHA, and state agencies. His analysis and
research in the area of forklift accidents were the subject of a peer-reviewed paper he
presented to the American Society of Mechanical Engineers (‘ASME’) in 2011.”).

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Since the Newell case, [Expert] obtained a license to operate a
forklift, but still does not have extensive experience operating it and
no experience operating it in the field. He was trained by his
employer and the remainder of his training was self-taught. He
trained one or two people to drive the forklift, but they were also
employees at his office. He still has not designed a forklift or any
component part for any piece of handling equipment. He also has
not attended any ASME meetings or proffered to it alternative
designs. Finally, he does not refer to himself or hold himself out as a
biomechanical engineer.
Given Expert’s extensive education, training, and experience, the circuit
court’s quibbles cannot justify the wholesale exclusion of Expert’s testimony at
trial. As explained above, “‘[i]n deciding whether to admit an expert’s testimony,
the circuit court is required to ensure that all of the statutory factors are met;
however the court is not required to consider the degree to which they are met.’”
Ingham, 608 S.W.3d at 702 (emphasis added; quoting Kivland, 331 S.W.3d at
311). While Expert may not have designed a forklift or forklift component, he is
plainly highly knowledgeable concerning the safety issues surrounding the design
and operation of stand-up forklifts. It may be that a mechanical engineer who

had actually designed the operator compartment of a side-stance, stand-up
forklift would be more qualified than Expert to testify to the relative merits of
that design. But whether a more qualified expert may exist is not the question.
The same could be said of the circuit court’s criticism that Expert “does not
have extensive experience operating [a stand-up forklift] and no experience
operating it in the field.” While others may have more than the 25-50 hours of
operating experience which Expert possesses, and may have actually worked as
forklift operators in a warehouse, § 491.065.2 does not require that Expert be the
most qualified possible expert witness. The fact that he has been certified to

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operate a stand-up forklift, and to train others to do so, plainly constitutes a
relevant qualification, even if additional qualifications may exist.

Although the circuit court found Expert to be unqualified because he “has
not attended any ASME meetings,” three of Expert’s most salient articles
concerning the design and safety of stand-up forklifts – and of Crown’s forklifts

in particular – were published by ASME: the articles analyzing Crown’s accident
data; measuring egress times from the forklift’s operator compartment with and
without a rear door; and measuring the acceleration forces generated by stand-up

forklifts during deceleration and turning maneuvers. The fact that Expert may
not have physically attended ASME meetings, and presented his papers there, is
not disqualifying.
Finally, the circuit court’s statement that Expert “does not refer to himself
or hold himself out as a biomechanical engineer” ignores the fact that, in his
deposition and in an affidavit submitted to the court, Expert explained that he

has “education and experience in the field of biomechanics,” and that he has
previously “qualified and testified regarding occupant kinematics, forces and
motion of vehicle occupants, during car crashes.”

The circuit court applied an unrealistic and overly demanding standard in
assessing Expert’s qualifications. As Hanshaw’s opening Brief cogently observes,

the trial court wanted someone that: (1) worked in a warehouse
operating a forklift; (2) also worked for a company, presumably as a
mechanical engineer, designing forklifts; (3) attended ASME
meetings or sent alternative design suggestions to ASME; and
(4) was also a biomechanical engineer.
The circuit court insisted on an unreasonable combination of experiences

in order for Expert to be considered “qualified” within the meaning of

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§ 490.065.2(1). It was not necessary for Expert to be the proverbial “unicorn” for
Hanshaw to be entitled to present his opinions to the jury at trial. The circuit

court abused its discretion in excluding Expert’s opinions based on its conclusion
that he was unqualified to offer them.

III.
The circuit court also abused its discretion in concluding that Expert’s
design defect opinions were not reliable.

A.
When reviewing Expert’s design-defect opinions, it is important to bear in
mind that, under Kansas law, Hanshaw does not have the burden to establish a
safer alternative design for Crown’s forklift. The Kansas Supreme Court has
explicitly rejected the definition of a design defect found in the Restatement
(Third) of Torts: Products Liability. The Restatement provides that “a product is
defective in design where ‘the foreseeable risks of harm posed by the product

could have been reduced or avoided by the adoption of a reasonable alternative
design . . ., and the omission of the alternative design renders the product not
reasonably safe.’” Delaney v. Deere & Co., 999 P.2d 930, 944 (Kan. 2000)

(quoting Restatement (Third) of Torts: Products Liability § 2(b)). In rejecting the
requirement that the plaintiff prove the greater safety of an alternative product
design, the Kansas Supreme Court explained:

Kansas law has been clear in allowing evidence of the feasibility of an
alternative design in the trial of a design defect. However, Kansas
has consistently held that evidence of a reasonable alternative design
may but is not required to be introduced in a design defect action.
Kansas has not used the concept of reasonable alternative design to
become the standard by which the questioned product is measured.

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....
The Third Restatement’s requirement that a plaintiff produce
a reasonable alternative design has been harshly criticized. [One
commentator] states that the reasonable alternative design
requirement is not supported by public policy or economic analysis
because the cost of processing a case will make it economically
impossible to produce a reasonable alternative design in a small
products liability case. Further, contrary to the view of the authors
of the Third Restatement that the majority of states require a
reasonable alternative design to establish a design defect, research
. . . indicates that very few states in fact have this requirement. . . . It
is clear in Kansas that evidence of a reasonable alternative design
may be presented but is not required. We adhere to this principle
and believe that it represents the majority rule in this country.
Id. at 945-46 (citations omitted); see also Moore v. Ford Motor Co., 332 S.W.3d
749, 759–60 (Mo. 2011) (“Missouri does not require a plaintiff to create an
alternative design to prove a design defect claim; it is enough that plaintiff show
that the design used was defective and unreasonably dangerous.” (citation
omitted)).

Thus, in evaluating the reliability of Expert’s opinions, we must be mindful
that Hanshaw’s burden was only to prove that Crown’s forklift was unreasonably
dangerous – not that a specific alternative design would have made it safer.

We first address the circuit court’s exclusion of Expert’s opinion that
Crown’s forklift was defectively designed because of the lack of a door. Contrary
to the circuit court, we conclude that Expert had a substantial, reliable basis to
offer this defective design opinion.
The primary basis on which the circuit court found Expert’s opinions to be
unreliable was that “[h]e cannot point to any door design or bumper he has

developed, prototyped, or tested, or any testing to measure the injury potential to

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stand-up forklift operators in off-dock and tip-over accidents on forklifts
equipped with a door or bumper.” This statement misapplies the law, and

fundamentally misstates the record.
The stringent testing standard the circuit court applied to Expert’s design
defect opinions is legally unfounded. In the circuit court and again on appeal,

Crown criticizes Expert for not having conducted “injury potential testing” of his
alternative designs using anthropomorphic dummies. The circuit court adopted
that criticism, and added that Expert “cannot point to any door design or bumper

he has developed, prototyped, or tested.” However, Expert was not required to
actually design, patent, prototype, and test an alternative design for Crown’s
forklift in order to be able to testify that the existing design is unreasonably
dangerous. Nor was he required to determine the economic feasibility of an
alternative design. As the Kansas Supreme Court explained in Delaney, if this
level of analysis were required, “the cost of processing a case will make it

economically impossible to produce a reasonable alternative design in a small
products liability case.” 999 P.2d at 946.
Caselaw holds that building and testing an alternative design may be

unnecessary where the alternative design is available in the marketplace. In this
case, Hanshaw emphasized to the circuit court that Crown itself provided doors
on the operator compartments of the forklifts it sold to Ford Motor Company
until 2008, and offered doors as optional equipment to other customers until
2010. Similar doors are offered by other manufacturers. The deployment of rear
doors on commercially available stand-up forklifts reduces, if not eliminates, the

need for Expert to have himself tested the feasibility and safety consequences of

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installing a door. See Anderson v. Raymond Corp., 61 F.4th 505, 510 (7th Cir.
2023) (“Raymond’s customers who have elected to fit their forklifts with

Raymond’s optional door have been testing [plaintiff’s expert’s] alternative for
him. Raymond can critique the use of those customers as comparators, but such
arguments go to the weight, not the admissibility, of [expert’s] testimony.”);

Jones v. Raymond Corp., 2023 WL 309055, at *7 (N.D. Miss. Jan. 18, 2023)
(“‘where the proposed alternative design has been produced and put to practical
use in the industry, the expert does not need to personally test it to satisfy

Daubert’” (citation omitted)); McHale v. Crown Eqpmt. Corp., 2021 WL 289346,
at *3 (M.D. Fla. Jan. 28, 2021) (permitting expert to testify to the defective design
of Crown’s RC5500 forklift due to its lack of a rear door and alternative braking
system, based in part on the fact that “forklifts with rear doors and with [expert’s]
proposed brake system have been produced and put to practical use in the
industry”); Gott v. Raymond Corp., 2008 WL 11452486, at *6 (N.D. W.Va. Dec.

19, 2008) (permitting expert to testify to defective design of stand-up forklift
without a rear door, despite expert’s failure to design or test an alternative
design; noting that, “in an apparent recognition of the fact that their stand-up lift

trucks can be hazardous without doors in certain situations, The Raymond
Corporation has produced spring loaded doors for their forklifts”).
In any event, while Expert may not have conducted the level of prototype
design and testing necessary to bring a new product to market, he has conducted
research and testing which supports the opinion that his proposed design is safer
than Crown’s open-compartment design. As Crown explains in its Brief, the

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industry’s resistance to the installation of doors on stand-up forklifts has been
primarily based on the following reasoning:

(1) Operators of stand-up rider forklifts have the best chance to avoid
serious injury in tipover and off-the-dock accidents by exiting the
machine; and (2) a door would hinder that maneuver.
Expert’s research has tested, and evaluated, the reasoning underlying the

industry’s resistance to operator-compartment doors. His research also
illuminates whether the installation of doors would have net positive, or negative,
effects on operator safety. Expert has done this in three ways.
1. Expert testified in his deposition that he conducted testing of the
egress times from a Crown RC3000 forklift, the predecessor to the RC5500
forklift which Hanshaw was operating. Crown’s corporate representative testified
that the operator compartment of the RC3000 is configured similarly to an
RC5500. (Given that its operator compartment is similarly configured, the
circuit court’s complaint that Expert had not conducted egress-time testing “on

the forklift at issue” misses the mark.) Expert testified that he and his co-authors
tested egress times when the forklift was equipped with no door, with a spring-
loaded door, and with a “latched” door (with a crash-bar) which Expert had

designed and installed. The results of Expert’s analysis were peer-reviewed, and
published in the ASME’s proceedings.4

4 Because of the confidentiality rules imposed by § 509.520.1(5), RSMo, we
do not provide complete citations to any of the articles of which Expert was a co-author.
See footnote 1, above.
The circuit court was provided with full citations to each of Expert’s published
articles concerning the safety and performance of stand-up forklifts. In the circuit court
and on appeal, the parties have discussed the contents of those articles, and have
debated whether Expert’s articles provide support for the opinions he offers in this case.
Nevertheless, the articles themselves were not filed with the circuit court, and have not
been made part of the record on appeal. We do not decide whether, in these

18
Crown acknowledges that Expert’s egress-time article “mentioned the
alternative designs he proposes in this case.” Nevertheless, it dismisses that

article by contending that

[t]he sole purpose of that article was to test the egress times for
operators exiting stand-up forklifts with a door, not to study the
safety aspects of his proposed designs and the serious risks
presented with adding an operator compartment barrier/door in
collision, tipover, or off-the-dock accidents.
Crown’s assertion that Expert’s egress-time article did not “study the safety
aspects of [Expert’s] proposed designs” is simply a non sequitur. Crown’s own
Brief asserts that the primary safety concern with the installation of doors on
stand-up forklifts is that “a door would hinder th[e] maneuver” of an operator
exiting the vehicle in a tip-over or off-the-dock accident. See Anderson, 61 F.4th
at 510 (noting that “the need for a quick escape in [stability accidents] was
[another manufacturer’s] justification for not fitting a door as standard”).
Expert’s egress-time study tests the accuracy of this very claim. It is inaccurate

for the circuit court, and for Crown, to claim that Expert has failed to test the
safety implications of door installation. See Hernandez v. Crown Equip. Corp.,
92 F. Supp.3d 1325, 1346 (M.D. Ga. 2015) (permitting another expert to testify to

the results of an egress-time study similar to that conducted by Expert, even
though expert’s study was performed on a forklift designed by a different
manufacturer).

circumstances, it is appropriate for the Court to refer to the content of the articles
themselves. Instead, we have relied only on the description of Expert’s published
articles contained in his deposition testimony and supplemental affidavit, both of which
were filed with the circuit court in connection with Crown’s exclusion motion. As in all
litigation, parties should be mindful to include in the record, both in the circuit court
and on appeal, all materials necessary to the disposition of contested issues.

19
2. Besides conducting an experiment which challenged the belief that
doors would “hinder th[e] maneuver” of exiting the operator compartment in a

tip-over or off-the-dock accident, Expert also conducted a detailed review of
years’ worth of Crown’s own accident reports. Based on that review, Expert
concluded that – for stand-up forklifts – collision accidents like the one Hanshaw

experienced are a far more serious concern than “stability” accidents like tip-
overs or off-the-dock accidents.
Expert conducted his most detailed review of Crown’s stand-up forklift

accident data in 2008, but updated it thereafter. Post-2008, Expert’s analysis
“focused on the OSHA fatal accident and injuries databases and an analysis of
that information that’s publicly available.” Based on his review of the accident
data, Expert concluded that tip-over accidents “are not very severe accidents in
terms of the acceleration and the forces applied to the operator”; he also testified
that “it’s unlikely that you’re going to sustain fatal injuries” in such an accident.

Expert concluded that “collisions are much more deadly, much more serious for
the operators of stand-up forklifts than sit-down forklifts.” Expert’s review
indicated that 76% of lower limb injuries are caused by the operator’s leg

inadvertently exiting the operator compartment. Expert specifically disagreed
with OSHA’s conclusion that tip-over accidents presented the greatest risk of
serious injury during operation of stand-up forklifts. He noted that OSHA had
“lump[ed] . . . stand-up forklifts and sit-down forklifts all into the same category”;
for that reason, “OSHA’s characterization of the data I think is misleading and
unhelpful.” See Hernandez, 92 F. Supp.3d at 1346 (permitting expert to offer

design defect opinions similar to Expert’s, based in part on the expert’s review of

20
Crown accident reports, and his conclusion that lower-limb crush injuries
represented “‘a very large number of serious, disabling injuries’”).

3. Besides leading him to conclude that collision accidents are a more
serious risk than stability accidents, Expert’s comprehensive review of Crown’s
accident reports also revealed that exiting the operator compartment of a stand-

up forklift is not the safest course in an off-the-dock accident. Instead, Expert
concluded that the primary risk to operators in “off-the-dock” accidents is the
danger of being crushed by the falling forklift if the operator ejects. During his

deposition, Expert testified as follows:

Q. And do off-the-dock accidents present life-threatening
injury potential to an operator?
A. I think that they do. I don’t think that they necessarily
come from the potential for head injury or spinal injury, again, as the
VRC/SEA-type testing would suggest, I think that they present life-
threatening injuries from the potential of being crushed by the
forklift.
Q. And, in fact, from your review of accident reports,
operators have been killed in off-the-dock accidents; correct?
A. Yes. Again, primarily as a result of being crushed by the
forklift, not as a result of sustaining head impact injuries or spinal
injuries from falling on the ground.
Because of the risks of being crushed if the operator ejects in an off-the-dock
accident, Expert testified that he would not recommend that operators eject in all
cases, and that operators are effectively in a “no-win situation” when stand-up
forklifts are used near loading docks; “[i]t’s a dangerous situation to go off-the-
dock in a stand-up forklift regardless of whether you jump or stay or are ejected.”
Expert’s conclusion that an operator would be safer remaining in the forklift in a
stability accident, based on his analysis of Crown’s accident data, is reliable, and

21
“will assist the jury, since Crown contends that the addition of a door on the
RC5500 would impede an operator’s egress from the operator compartment

during a tip-over or off-the-dock incident.” McHale, 2021 WL 289346, at *4.

* * * * *
The criticism that Expert has not tested the safety of an alternative forklift

design incorporating compartment doors, or performed “injury potential” testing,
suggests that Expert failed to evaluate the risk to operators from tip-over and off-
the-dock accidents, as compared to the risk of lower-limb injuries in collisions.

But Expert did analyze comparative egress times with and without doors, and he
performed a detailed analysis of accident reports involving stand-up forklifts
(which indicated that collision accidents present the far greater risk, and that
ejecting from a falling stand-up forklift presents its own risks). Given the testing
and research Expert has conducted, his failure to conduct “injury potential”
testing using anthropomorphic dummies is not disqualifying. Expert’s research

supports his conclusions that doors will not materially hinder operators from
exiting a forklift in an emergency; that exiting the forklift may not be the safest
course of action in a stability accident in any event; and that guarding against

collisions is a more important means of reducing fatal and serious-injury
accidents than taking precautions against stability accidents.
In its briefing, Crown emphasizes that equipping stand-up forklifts with
doors would be inconsistent with ASME/ANSI standards, and with OSHA
regulations. Crown does not argue, however, that those standards or regulations
prohibit the installation of doors. Expert’s disagreement with standard-setting

organizations or government regulators is not disqualifying. See Anderson, 61

22
F.4th at 511 (“While ANSI may suggest a preference for open operating
compartments, we are aware of no case stating that an expert who disagrees with

ANSI’s suggestion is categorically barred from testifying. Just the opposite:
ANSI’s recommendation, standing alone, is not a dispositive consideration.”
(cleaned up)). Moreover, at oral argument Crown’s counsel acknowledged that

the standards and regulations permit the installation of doors at least in certain
circumstances. We note once again that Crown actually produced stand-up
forklifts with latching doors for Ford Motor Company until 2008, and only

discontinued the installation of doors on its stand-up forklifts in 2010.
The fact that Expert’s opinions may disagree with recommendations made
by regulators and safety organizations will plainly provide a substantial basis for
Crown to challenge the credibility of his opinions; the inquiry under § 490.065.2
is not intended to decide the persuasiveness of an expert’s opinions, however.
The fact that Expert’s opinions may be contrary to the views of government

regulators and engineering organizations is an issue for a jury to weigh – it is not
a basis to exclude Expert’s opinions entirely.
For the foregoing reasons, we find that the circuit court abused its

discretion in excluding Expert’s design defect opinions based on its conclusion
that those opinions were unreliable.

B.
The dissenting opinions do not attempt to defend the circuit court’s
conclusion that Expert was unqualified. They argue, however, that the circuit
court acted within its discretion in finding that Expert’s opinions were not

reliable.

23
The dissenting opinions’ primary contention is that Hanshaw relied on an
outdated version of § 490.065 in opposing Crown’s motion to exclude Expert’s

testimony. The dissents claim that due to his reliance on old law, Hanshaw
mistakenly argued that Expert’s opinions were admissible based solely on his
general qualifications, and made no effort to show that Expert’s opinions were

based on the reliable application of reliable principles and methods.
The dissents’ characterizations of Hanshaw’s circuit-court briefing are
incomplete. Admittedly, Hanshaw’s response to Crown’s exclusion motion

mistakenly included a block quotation of §§ 490.065.1 to .4, RSMo 2016 – a
statute which was substantially amended by the General Assembly in 2017.
Despite this erroneous quotation, however, Hanshaw’s response to the motion to
exclude cited State ex rel. Gardner v. Wright, 562 S.W.3d 311, 317 (Mo. App. E.D.
2018), which interprets and applies the current version of § 490.065.2. Hanshaw
cited Wright for its recognition that the post-2017 version of § 490.065.2 “is

identical to Federal Rules of Evidence 702-705.” Hanshaw also quoted the three-
part test Wright used to summarize the requirements of the current statute:
“(1) whether the expert is qualified, (2) whether the testimony is relevant, and

(3) whether the testimony is reliable.” 562 S.W.3d at 319 (emphasis added).
Contrary to the dissents’ claims, Hanshaw did not limit his arguments to
Expert’s general qualifications. After arguing that Expert was sufficiently
qualified to offer expert opinions concerning the design of Crown’s forklift, the
next heading in Hanshaw’s response explicitly argued that Expert’s “opinions on
stand-up forklift designs are reliable.” Hanshaw began his reliability argument

by quoting Wright’s paraphrase of the requirements of §§ 490.065.2(2)(1)(b)

24
through (d): he argued that “[t]estimony is reliable if it is ‘based on sufficient
facts or data, reliable principles and methods and reliable application thereof.’”

(Quoting Wright, 562 S.W.3d at 319). It is simply inaccurate for our dissenting
colleagues to claim that “[n]owhere in his Response does Hanshaw assert that
[Expert]’s opinions satisfy the reliability requirements of section 490.065.2(1)(a)-

(d); these requirements are not even identified.” (Emphasis omitted.)
The dissents also contend that Hanshaw’s opposition to the motion to
exclude failed to explain how Expert’s prior research work, or his investigations

in this case, support his opinions. On the contrary, the manner in which Expert
came to his opinions concerning the design of Crown’s forklift was not a mystery
to the circuit court. In § III.A, above, we have described and quoted excerpts
from Expert’s deposition and affidavit, which explain how his prior studies
supported his design-defect opinions. Hanshaw provided all of those materials to
the circuit court in opposing Crown’s exclusion motion. In addition, Hanshaw’s

suggestions in opposition explained the work Expert had done to formulate his
opinions in detail, with appropriate record citations:

For this case, [Expert] has conducted or reviewed . . .
Performance testing of forklifts, including the lateral and
longitudinal acceleration of forklifts in operation during backing and
steering. Further, [Expert] has conducted or reviewed Testing to
evaluate the acceleration and speeds during forklift collision.
[Expert] has conducted or reviewed testing for Evaluation of egress
times from stand-up forklifts. [Expert] has analyzed speeds and
accelerations of an RC-5500, the model of lift that is the subject of
the pending matter. [Expert] has compared that data to
accelerations and speeds from data obtained from Crown and from
inspecting the subject lift. [Expert] compared all such data to the
video of the actual incident involving Mr. Hanshaw.

25
[Expert] has inspected the facility at the location of the
incident; inspected the subject forklift; reviewed all depositions,
including the depositions of Crown employees, representatives, and
expert witnesses; reviewed 135 photographs of the site and of the
subject forklift; created a 3D model of the site of the incident;
created a 3D model of the subject forklift; created speed analysis of
the forklift during the actual event relying on video footage of the
collision; and performed safety engineering analysis of the Crown
forklifts relying on design engineering principles assessing the
foreseeable failure and effects modes. [Expert] has analyzed Crown
accident data reported by Crown and used this information in
developing his opinions. [Expert] has partially based his opinions on
in this case, the data obtained through OSHA of fatal accidents and
injuries attributed to operation of forklifts, which note that seventy-
six percent of all lower limb injuries of operators of stand-up forklifts
are attributable to the operator’s lower limb being inadvertently
outside the operator’s compartment.
Moreover, Hanshaw’s response to the motion to exclude explained that
Expert’s opinion that “a latching door on the subject forklift would improve its
overall safety . . . was derived after obtaining a Crown RC3000 forklift and
modifying it to include a door.” This statement was supported with specific

citations to the portions of Expert’s deposition in which he described the egress-
time testing he had conducted to assess the forklift industry’s claim that a rear
compartment door would hinder operator exit in the event of a stability accident.

(To be clear, Hanshaw’s response to the motion to exclude cited to specific
numbered paragraphs from his Additional Statement of Uncontroverted Material
Facts in Opposition to Summary Judgment, which was filed simultaneously;
Hanshaw’s statements of uncontroverted fact in turn cited to specific passages of
Expert’s deposition by page and line number. While the deposition references
were not literally contained in Hanshaw’s response to the motion to exclude, the

effect is the same.)

26
The dissenting judges also contend that Expert’s design-defect opinions
suffer from the same “analytical gap” which we found disqualifying in Gebhardt

v. American Honda Motor Co., 627 S.W.3d 37 (Mo. App. W.D. 2021). Gebhardt
is plainly distinguishable, however. In Gebhardt, an expert opined that an all-
terrain vehicle (or “ATV”) suffered from a design defect, based in part on a

manufacturer’s recall. The recall addressed the risk that, over time, water could
infiltrate a throttle mechanism, causing the ATV “to fail to return to idle” if the
water froze. 627 S.W.3d at 45 (emphasis added). In the Gebhardt case, the

expert claimed that the plaintiff’s ATV experienced sudden acceleration due to
the immediate effect of liquid water on the throttle mechanism. Id. Thus, the
expert in Gebhardt relied on the manufacturer’s recall to support his opinion,
even though the manufacturer’s recall involved a different failure mode,
occurring over a different time span, producing a different outcome.
In addition, in Gebhardt the expert’s opinion was based on his assumption

that water had splashed up into an area near the ATV’s throttle mechanism, and
then further assumed that this water came into contact with the throttle
mechanism itself – with no evidence that such water infiltration had actually

occurred. Id. at 45-46.
Unlike in Gebhardt, in this case Expert did not speculate as to the
circumstances of Hanshaw’s injury, or as to the features of Crown’s forklift which
caused that injury. Expert conducted a detailed accident reconstruction based on
an inspection of the site where the accident occurred and of the forklift Hanshaw
was operating; review of video footage of the collision; and review of the

depositions of Crown employees and experts. Expert constructed a three-

27
dimensional model of the accident site and the forklift, and calculated the speed,
and the rates of acceleration and deceleration, of the forklift immediately prior to

the accident. Based on this analysis, Expert concluded that Hanshaw had not
attempted to jump from the truck, and had not stuck out his foot to try to “fend
off” the pole he was approaching. Instead, Expert concluded that “[i]t’s the

deceleration and the lateral acceleration of the forklift at the same time” that
caused Hanshaw to lose his balance, and caused his foot to come out of the
operator compartment – a mechanism of injury which Expert contends would

have been defeated by the addition of a compartment door.
As Judge Thomson asserts, it may be “a contested factual issue” whether
Hanshaw’s injury occurred in this manner, and whether a compartment door
would have prevented that injury; but those contested factual issues are for a
fact-finder to decide, not for the court to decide on a motion to exclude expert
testimony (or on a motion for summary judgment). As this Court has

emphasized, the circuit court’s role in addressing a motion to exclude expert
testimony is not to judge the persuasiveness of the expert’s opinions, or “to serve
as a replacement for the adversary system.” Ingham v. Johnson & Johnson, 608

S.W.3d 663, 701 (Mo. App. E.D. 2020). Instead, “‘[v]igorous 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.’” Id. at 702 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 596 (1993)). For present purposes, it suffices to note that there is no
“analytical gap” in Expert’s opinions between the claimed defect in the forklift’s

design and the injury Hanshaw suffered.

28
IV.
In his briefing, Hanshaw also argues that Expert was competent to opine
that the use of bumpers on Crown’s forklift presented a safer design alternative.
During his deposition, however, Expert testified that “I don’t know that I have an

opinion in that area,” when he was asked whether bumpers should be added to
Crown’s forklift instead of a door. He also testified that he was “not sure”
whether or not a bumper would have prevented Hanshaw’s injuries. Expert also

did not identify any prior research or testing he had conducted concerning the
safety effects of adding bumpers to a stand-up forklift like the Crown RC5500.
Given Expert’s testimony, and his lack of experience with forklift bumpers, the
circuit court acted well within its discretion in excluding Expert’s opinion that the
Crown forklift was defective for lack of a rear bumper.
Hanshaw’s discovery responses suggested that Expert might also provide

opinions concerning the necessity and adequacy of warnings on Crown’s forklift.
During his deposition, however, Expert testified that he was not opining that the
forklift was defective due to the lack of adequate warnings, and Hanshaw does

not challenge the exclusion of any warnings-related opinions on appeal. We
therefore have no basis upon which to question the circuit court’s conclusion that
Expert was not entitled to give warnings-related opinions.
Finally, we note that Expert testified in his deposition that he believed
Crown’s stand-up forklifts were not appropriate for use in warehouse settings
with loading docks like the one where Hanshaw was working, and that Crown
should offer its customers other forms of material handling equipment as an
alternative. Hanshaw does not seek to defend the admissibility of that opinion on
appeal, and we consider the point abandoned.

29
V.
In his final Point, Hanshaw contends that the circuit court erroneously
granted summary judgment on his prayer for punitive damages. The circuit
court’s exclusion order and judgment reflect, however, that the court did not

address Crown’s alternative motion for partial summary judgment on punitive
damages. Moreover, Hanshaw argued in the circuit court both that the
summary-judgment evidence justified the submission of punitive damages, and

that a ruling on this issue was premature pending further factual development.
In these circumstances, we decline to address this issue, which the circuit court
never reached.

Conclusion
Hanshaw presented an expert witness who had substantial experience
studying and testing the performance and safety of stand-up forklifts.

The opinion expressed by Hanshaw’s expert – that Crown’s forklift was
unreasonably dangerous based on its lack of a rear door – was supported by his
prior research work, and by his in-depth investigation of the circumstances

surrounding Hanshaw’s accident. Assessment of the credibility and probative
value of that opinion was an issue for a jury to decide at trial – not a question for
the circuit court to decide in pre-trial motions practice. The circuit court abused
its discretion in concluding that Hanshaw’s expert was unqualified, and that his
design defect opinion concerning the lack of a door was unreliable. The circuit
court’s order excluding Hanshaw’s expert from testifying, and its grant of
summary judgment to Crown based on the exclusion order, are reversed. The

30
case is remanded to the circuit court for further proceedings consistent with this
opinion.

________________________
Alok Ahuja, Judge

Chief Judge Gabbert, and Judges Hardwick, Pfeiffer, Mitchell, Martin, Witt,
Ardini, and Sutton concur.
Judges Chapman and Thomson dissent in separate opinions.

31
IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
CHRISTOPHER HANSHAW, )
)
Appellant, )
)
v. ) WD86389
)
CROWN EQUIPMENT CORP., ET AL, ) Filed: April 1, 2025
)
Respondent. )

DISSENTING OPINION

I respectfully dissent with that portion of the majority opinion which

determines the trial court abused its discretion in finding that Hanshaw failed to

address the reliability requirements for expert testimony set forth recently by our

legislature.1 I write to detail my concern that Hanshaw’s expert has not

addressed the required reliability standards set forth by our legislature in section

490.065.2(1)(a)-(d), and therefore the trial court did not abuse its discretion in

1 I agree with the majority opinion in determining that “the circuit court acted

well within its discretion in excluding [Proposed] Expert’s opinion that the Crown
forklift was defective for lack of a rear bumper.” (Majority p. 24). I also agree that the
majority opinion’s determination that there is “no basis upon which to question the
circuit court’s conclusion that [Proposed] Expert was not entitled to give warnings-
related opinions.” (Majority p. 24).
excluding the testimony of B.R. (Hanshaw’s proposed expert), and its resulting

summary judgment. This is rendered poignant here, because in his briefing to

the trial court and the exhibits thereto Hanshaw clearly sets forth and addresses

the former statutory requirements regarding expert testimony, and ignores the

additional requirements of the current statute. Make no mistake, Hanshaw’s use

of the former statute is not, in and of itself, the reason I dissent. Rather, his use

and application of it explains why his argument to the trial court did not satisfy

current section 490.065.2(1)(a)-(d). It simply hamstrung his argument to the

trial court, and necessarily renders his argument to this court futile. Our

legislature made changes to the statute in 2017, and I do not believe the clear

language of those changes suggest any abuse of discretion by the trial court here.

To determine whether this trial court abused its discretion, we must look to

what was presented to the trial court to make the ruling in question. Here,

instead of doing so, the majority opinion must manufacture the argument

Hanshaw could have made had he addressed the proper statute at the trial court

level, yet in doing so the majority still does not follow the requirements of section

490.065.2(1)(b)-(d) articulated by our legislature. While the majority opinion

says the trial court quibbles with what Hanshaw presented in making its ruling, it

is the majority opinion which cherry picks from the trial court’s findings to find

error, yet fails to look at the clear and correct analysis made by the trial court as

to reliability of B.R., an analysis which follows this court’s recent case on point

and the current version of section 490.065.2. This, in the wake of Hanshaw’s

2
complete failure to enunciate and address current 490.065.2 at the trial court

level makes the proper outcome clear. Here, where B.R.’s proposed expert

testimony must satisfy the twin prongs of being qualified and reliable, there is no

question the trial court did not abuse its discretion in finding B.R.’s testimony

failed to do so with respect to the reliability prong.2 And, because Hanshaw was

required to satisfy both prongs, there can be no question the trial court did not

abuse its discretion in excluding the testimony of B.R.

I. The Applicable Statutory Standard

Section 490.065 governs the admission of expert testimony in Missouri

courts. The Missouri legislature amended Section 490.065 in 2017 to apply a

more stringent standard to parties desiring to present expert testimony in certain

actions, such as the tort action here. A comparison of section 490.065 before and

after its revisions in 2017 is critical, as Hanshaw’s Response to the motion to

exclude relied upon the wrong version of the statute, and thereby failed to

address today’s statutory requirements when arguing before the trial court.

2 The majority has dedicated section III.B. of its opinion to address our dissents.

From the outset, it seeks to discount that we do not address the trial court’s conclusion
that B.R. is not qualified. But because B.R. must be both qualified and his opinions
reliable pursuant to section 490.065.2(1)(a)-(d), we need not address both prongs. The
majority is well aware that appellate courts must affirm the circuit court’s judgment if it
is correct on any ground supported by the record. See Curtis v. Mo. Democratic Party,
548 S.W.3d 909, 918 (Mo. banc 2018). In light of this well-established principle, for the
majority to assert that the “dissenting opinions do not even attempt to defend the circuit
court’s conclusion that [B.R.] was unqualified” is, at best, irrelevant, when it is clear we
need not address the prongs of both qualification and reliability in order to affirm the
trial court’s judgment.

3
As relevant to this case, current section 490.065.2(1), applicable to tort

actions such as the one at hand, provides:

(1) A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or
otherwise if:
(a) The expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the
facts of the case[.]
(emphases added). The plain language of this standard makes clear that a

witness who is qualified as an expert may provide opinion testimony and other

testimony only if four additional requirements which measure reliability are also

met. In other words, being qualified alone is not enough; rather, the proponent

of a proffered expert must also make a sufficient showing regarding this

reliability prong. See section 490.065.2(1)(a)-(d).

The current and applicable version of Section 490.065.2 differs

significantly from the prior version.3 Prior to August 28, 1017, section 490.065

stated:

1. In any civil action, 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,
3 The current section 490.065.1 is nearly identical to former section 490.065.

However, current section 490.065.1 is only applicable to actions brought under certain
chapters of the Revised Statutes of Missouri, none of which are applicable in this tort
action. In this case, we agree with the majority that current section 490.065.2 is the
applicable subsection.

4
skill, experience, training, or education may testify thereto in the form of
an opinion or otherwise.

2. Testimony by such an expert witness in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact.

3. The facts or data in a particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to him at
or before the hearing and must be of a type reasonably relied upon by
experts in the field in forming opinions or inferences upon the subject and
must be otherwise reasonably reliable.

4. If a reasonable foundation is laid, an expert may testify in terms of
opinion or inference and give the reasons therefor without the use of
hypothetical questions, unless the court believes the use of a hypothetical
question will make the expert's opinion more understandable or of greater
assistance to the jury due to the particular facts of the case.

In other words, prior to 2017, an expert was permitted to testify in Missouri

if they were qualified as an expert (former section 490.065.1) and the opinion was

based on facts found reasonably reliable (former section 490.065.3). Pursuant to

the current version, the legislature has required that an expert is permitted to

testify only if they are both qualified and meet four additional, specific statutory

requirements regarding the reliability of their opinions. See Section

490.065.2(1)(a)-(d).

II. Hanshaw Did Not Address, or Even Reference, the Specific

Reliability Requirements of Section 490.065.2(1)(b)-(d).

In order to determine whether a trial court has abused its discretion, we

must be mindful of the argument presented to the trial court for its

consideration. Here, in his reply to Crown’s motion to exclude B.R., Hanshaw

did not even reference to section 490.065.2(1)(b), (c), or (d), the reliability
5
requirements of the statute. This fact, the majority opinion cannot escape.

Hanshaw did not demonstrate what facts or data B.R. considered in forming its

opinions as required in Section 490.065.2(1)(b), how B.R.’s opinions were the

product of reliable principles and methods as required in Section

490.065.2(1)(c), or how B.R.’s reliably applied the principles and methods he

used to the facts of the case as required by Section 490.065.2(1)(d). Accordingly,

it is curious how the trial court could have abused its discretion in finding

Hanshaw failed in his obligation to prove the reliability of his purported expert.

First, it is notable that the majority opinion is largely silent or makes

assumptions as to what B.R. specifically relied upon, and which is included in the

record, in this case. The majority opinion does not discuss how what B.R. relied

upon in this case informed the opinions he ultimately expressed. Instead, the

majority opinion spends most of its time discussing B.R.’s generalized research,

which is comprised of publications not included in the record before this Court or

the trial court. According to the majority opinion, B.R.’s general research,

although outside of the record, “supports his conclusions that doors will not

materially hinder operators from exiting a forklift in an emergency; that exiting

the forklift may not be the safest course of action in a stability accident in any

event; and that guarding against collisions is a more important means of

reducing fatal and serious-injury accidents than taking precautions against

stability accidents.” (Majority, pp. 22-23).

6
The most obvious error with the majority opinion’s reliance on B.R.’s

research, which is not materially part of the record, is that B.R. never stated that

such research informed his opinions in this case. This, too, is something the

majority cannot escape. The trial court’s order excluding B.R. rightfully pointed

this out:

The majority opinion’s manufactured emphasis on B.R.’s research also

reveals what little relevance the mere existence of this research has on B.R.’s

ultimate conclusions. While the majority opinion claims that B.R.’s research

“supports his conclusions that doors will not materially hinder operators from

exiting a forklift in an emergency” (Majority, p. 22), the record does not support

this conclusion. At most, the record before the trial court and this Court indicates

that B.R. conducted some sort of egress testing at some point in the past on a

similar forklift to the one at issue. However, for the reasons discussed in section

III, below, neither Hanshaw nor B.R. provided the trial court with the

4 As with much of the trial court’s application of section 490.065.2(1)(a)-(d), the

majority opinion does not mention this portion of the trial court’s decision, instead
solely directing us to what it has cherry-picked as the “primary basis” of the trial court’s
decision, discussed below at page 22. I would urge the reader to consider the well-
reasoned findings of the trial court interspersed throughout the dissenting opinions.

7
conclusions from that testing nor stated whether B.R. relied on such testing when

coming to his conclusions.5 The majority opinion places undue emphasis on

matters that, as the trial court rightfully determined, B.R. never indicated were

relevant to or supported his opinions.

Because Hanshaw was the proponent of B.R.’s testimony, Hanshaw “bore

the burden of establishing that [the] expert testimony satisfied the foundational

requirements of [Section] 490.065.2(1)” in the trial court. State v. Antle, 657

S.W.3d 221, 234 (Mo. App. W.D. 2021). Hanshaw simply did not meet his

burden. The legal file contains all of the information the trial court had before it

in deciding Crown’s motion to exclude B.R. Hanshaw’s Legal File contains his

memorandum in opposition to Crown’s motion to exclude and supplemental

materials as follows: B.R.’s curriculum vitae; his full deposition; the deposition of

Crown’s corporate representative; Hanshaw’s deposition; and an affidavit from

B.R. concerning his qualifications and the tasks he undertook in reviewing

5 This should come as no surprise. In the affidavit of B.R. attached to Hanshaw’s
Response to the motion to exclude, he specifically states that “a Power Point
presentation was prepared that detail [sic] the primary opinion I will offer along with
some of the source material upon which I relied. That Power Point is attached as
Exhibit ‘B.’” Yet, there is no Exhibit B attached to Expert’s affidavit. By his own
affidavit, Expert directed the trial court to an absent exhibit for any discussion of his
“primary opinion” and the materials upon which he relied. Given the absence of his
opinions, the source materials, and the methodology used to derive the conclusions, it
becomes even more clear that the reliability prong of 490.065.2(1)(b)-(d) simply was not
met, and why the majority opinion must rely on tertiary source material.

8
Hanshaw’s case.6 As the proponent of B.R., Hanshaw had the duty to address

how B.R. met section 490.065.2(1)(a)-(d)’s requirements. Yet, a review of the

majority opinion, and Hanshaw’s argument both below and on appeal, fails to

specifically provide how these requirements were met.

Rather, Hanshaw argues, and the majority opinion seems to accept, that

B.R.’s opinions are reliable because he has “extensive experience” and that he

“applied all that experience when he conducted his extensive review and analysis

of the [subject forklift] involved in this case as well as Plaintiff Hanshaw’s

accident.” (App. Brief, p. 42). Though we do not know their application to the

events of this lawsuit, Hanshaw also points out B.R. has co-authored papers. This

is insufficient to satisfy Section 490.065.2(c) and (d), which requires an expert’s

opinions to be “the product of reliable principles and methods” and requires an

expert to “reliably appl[y] the principles and methods to the facts of the case.”

Essentially, Hanshaw argues that because B.R. is qualified, his opinions must be

reliable. Such ignores section 490.065.2(1)(a)-(d)’s requirements.

B.R.’s opinions do not satisfy Section 490.065 because Hanshaw does not

meaningfully connect the facts of this case to his conclusions by explaining his

methodology or provide data that supports his findings. See Section

490.065.2(1)(c) (“The testimony [must be] the product of reliable principles and

6 His supplemental materials were actually attached to his suggestions in

opposition to summary judgment but have been interchangeably utilized for both that
motion and his opposition to the motion to exclude expert.

9
methods.”). We have nothing but the ipse dixit7 statement of B.R. See Gen. Elec.

Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (stating that

a trial court is not required “to admit opinion evidence that is connected to existing

data only by the ipse dixit of the expert. A court may conclude that there is simply

too great an analytical gap between the data and the opinion offered.”). In short,

we have B.R.’s qualifications (Section 490.065.2(1)(a)); we do not have, nor did the

trial court have, the principles and methods or their application to the facts of the

case (Section 490.065.2(1)(c)). Thus, we cannot say he reliably applied those

principles and methods to the facts of the case in reaching his opinions, nor could

the trial court do so.

This Court has recently affirmed a trial court’s exclusion of an otherwise

qualified expert when such expert did not offer reliable opinions. See Gebhardt v.

Am. Honda Motor Co., 627 S.W.3d 37, 46 (Mo. App. W.D. 2021).8 In that case, we

affirmed the trial court’s exclusion of a mechanical engineer’s opinion, finding that

“there was an analytical gap between the limited data provided and [the proposed

expert’s] opinions.” Id. at 45. The majority opinion seeks to discount that holding,

again cherry picking from the well-reasoned Gebhardt decision while wholly

ignoring its overarching determination: that the expert’s methodology was not

thorough, just as B.R.’s methodology is absent from the case at hand. See id. In

7 Ipse dixit translates to “he himself said it.”

8 Notably, Hanshaw wholly ignores Gebhardt, our application of section

490.065.2’s requirements included therein, and makes no effort to explain why the trial
court erred in applying same.

10
finding section 490.065.2(1)(c) (“The testimony [must be] the product of reliable

principles and methods”) was not met, we clearly stated the proposed expert “did

not thoroughly explain his methodology or point to studies, tests, publications, or

other support for his findings." Gebhardt, 627 S.W.3d at 45. We explained,

“[e]ven if [the expert’s] theory was plausible, its speculative foundation and lack of

confirmatory testing, third-party validation or other facts and data buttressing the

reliability of the methods applied or conclusions produced provided the trial court

a sufficient basis to exclude [the proposed expert’s] testimony.” Id. at 46.

Such an “analytical gap” exists in this case, despite the majority opinion’s

insistence that B.R.’s qualifications and previous work “bridge” the vast gap. B.R.

never explains on the record in more than general terms how his actions in this

case inform the opinions he formulated. For example, in B.R.’s affidavit filed with

Hanshaw’s Response, B.R. simply states, “In formulating my opinions, I have

reviewed a host of materials and I conducted both in the past and specifically for

this case, a number of analyses and tests [sic].” B.R. never explains how the “host

of materials” or the “number of analyses and tests” that he conducted informs the

opinions he has in this case, nor does he explain the methodology applied. Without

explanation, we cannot determine whether B.R.’s “testimony is the product of

reliable principles and methods” or if B.R. has “reliably applied the principles and

methods to the facts of the case.” See Section 490.065.2(1)(c)-(d).9

9 We note that the majority has apparently gleaned B.R.’s 169-page deposition

and located what B.R. purportedly “concluded.” (Majority p. 28). However, we further
note Hanshaw did not refer the trial court to this, or any other portion of B.R.’s
11
In insisting that there is no analytical gap in this case, the majority notes that

B.R. concluded that Hanshaw’s injury occurred because Hanshaw lost his balance

and that this loss of balance caused Hanshaw’s foot to exit the operator

compartment of the forklift. The majority then notes that B.R. contends that this

mechanism of injury would have been prevented if the subject forklift had a

compartment door. But, to be clear, it was a contested factual issue whether

Hanshaw intentionally exited the forklift or if his leg was outside of the forklift due

to a loss of balance,10 and as discussed at oral argument, it was also a contested

deposition at all in his Response. Further, the majority’s effort to ‘connect’ B.R.’s
deceleration and lateral acceleration conclusion to a reason for injury “which would
have been prevented by the addition of a compartment door,” (Majority p. 28), is not a
connection B.R. rendered in such discussion. Rather, when discussing deceleration and
lateral acceleration, B.R., by process of eliminating a “fend off” and a “jump situation”
(the other two “primary failure modes”) was simply rationalizing why Hanshaw’s foot
was outside the compartment; B.R. was not tying cause and prevention together as the
majority suggests. Accordingly, while I disagree this is the great elixir necessary to
satisfy the requirements of section 490.065.2(1)(c)-(d), it highlights what I have said
previously: that the majority has done what Hanshaw could (and should) have done at
the trial court level, but did not.
10 For background, Hanshaw was injured on the fourth day of his employment

and the injury was captured on surveillance video. Multiple entities investigated the
accident. Hanshaw’s employer’s investigation included a report indicating that
Hanshaw had told the warehouse lead and another fellow employee that he had
panicked and jumped out of the forklift. This report indicated that Hanshaw had been
asked what happened after the accident and that Hanshaw had said, “I was going to go
around the wrapper and turned the wrong way. I panicked and tried to jump out of the
way.” An OSHA report indicated: “The employee either attempted to jump out or push
off the pole with his foot but got his foot caught in between the pole and the forklift.”
In his deposition, Hanshaw testified that the only thing he remembered about the
collision was lifting his foot off of a switch to activate the E-brake and then being on the
ground after the accident; that he did not remember making the statements in his
employer’s report; that he had never given OSHA a statement when OSHA tried
contacting him multiple times; and that he disagrees with the notion that he attempted
to jump out of the forklift or push off of the pole with his foot.

12
issue whether a door would have prevented Hanshaw’s injury even if Hanshaw’s

leg was inadvertently outside of the operator compartment depending on the

door’s design and function. I am, of course, aware that contested factual issues are

not decided on a motion to exclude or a motion for summary judgment. I simply

point out these contested factual issues because they provide helpful background

for illustrating why the majority reaches too far in asserting that B.R. (who has

never designed a component part of any piece of material handling equipment) can

reliably opine that a door would have prevented Hanshaw’s injury without

reference to the specific function and design of the door.

As Crown pointed out at oral argument, doors open, and how they open

matters. Nothing in the record indicates that B.R.’s proposed spring-loaded door

would have prevented the injury in this case (even under B.R.’s factual theory),

given that a spring-loaded door opens when a person falls against it. Further,

B.R.’s deposition (albeit a part to which the trial court was never directed)

indicated that his other recommended design was a latching door that would be

opened with a crash bar (similar to bars that open doors in a school gym) that

would be placed directly next to the operator’s hip, that would be opened by contact

with the operator’s hip, and that would not come equipped with a device that would

prevent the door from opening upon inadvertent contact with the operator’s hip.

The lack of details regarding B.R.’s proposed designs, and the fact that he seemed

to suggest that one door was as good as another without regard to how they

functioned, was absolutely relevant to whether B.R. could reliably opine regarding

13
what injuries a door would have prevented. As the trial court accurately

recognized: “[B.R.] testified he added a door to a forklift, but did not offer testing

results in support of his design options.” In contending that there was no analytical

gap between B.R.’s designs and Hanshaw’s injury, the majority appears to take the

position that B.R. took – that one door would be as good as another – which, as

Crown points out, suggests a lack of understanding regarding the importance of

design details.

Further, in his deposition, B.R. acknowledged his lack of testing:

Q: Have you conducted any tip-over testing where you actually tipped a
Crown stand-up rider forklift with or without a dummy just to
measure forces, anything such as that?
A: No, sir.

Q: Have you ever conducted any stand-up rider testing using any type of
forklift and somehow getting it to go off a dock, measuring forces or
measuring rotations, anything such as that?

A: No.

B.R. also testified:

Q: And I want to take this next question broader than just the Crown
trucks. Have you ever done any injury potential testing involving
stand-up rider forklifts and anthropomorphic dummies where you
could measure the forces on those dummies involving any
manufacturer’s stand-up rider forklifts?

A: No.

In short, B.R. has done nothing to quantifiably determine how his proposed door

designs would impact operator safety.11

11 Federal courts have excluded similar design proposals in other defective design

cases involving forklifts. See Dhillon v. Crown Controls Corp., 269 F.3d 865, 867 (7th
14
The majority opinion points out that the law does not require B.R. to conduct

such “injury potential testing” and that the trial court erred in applying such a

“stringent” standard when evaluating B.R.’s opinions. (Majority p. 16). We note,

however, that this is contrary to our Gebhardt opinion which specifically stated

that “speculative foundation and lack of confirmatory testing, third-party

validation or other facts and data buttressing the reliability of the methods applied

or conclusions produced” provide a sufficient basis for the trial court to exclude an

expert’s testimony. Gebhardt, 627 S.W.3d at 46. Regardless, where the record is

replete with what B.R. did not do and scant as to what B.R. did do to draw his

conclusions the absence of any meaningful testing further undermines the

reliability of B.R.’s opinions.

In short, the record in this case does not demonstrate that B.R.’s opinions

are based on “reliable principles and methods” as required by Section

490.065.2(1)(c). The record before us is notable only for what B.R. did not do in

this case and contains little information on what B.R. did to come to his opinions.

As such, B.R.’s opinions are not the product of reliable principles and methods and

Cir. 2001) (“When, as in this case, an expert has not engaged in any type of testing of his
offered ‘alternative design,’ it is not an abuse of discretion for the district court to refuse
to allow such testimony.”); Lawrence v. Raymond Corp., No. 3:09 CV 1067, 2011 WL
3418324 at *7 (N.D. Ohio Aug. 4, 2011) (finding that because the expert’s alternative
design “strongly lend themselves to testing” and “[a]s such, his testing is perhaps the most
important factor.”); Ortiz v. Yale Materials Handling Corp., No. CIV 03-3657FLW, 2005
WL 2044923 at *6-*10 (D. N.J. Aug. 24, 2005) (finding the expert’s opinion unreliable
because he never performed any dynamic testing with a forklift, had never completed any
computer simulations with his proposed door design, and had never completed any
analysis on adding a latching door to the forklift at issue in the case).

15
do not satisfy Section 490.065.2(1)(c). Consequently, B.R.’s opinions also do not

satisfy Section 490.065.2(1)(d), which requires an expert to reliably apply those

principles and methods to the facts of the case.

Hanshaw argues B.R.’s opinions are reliable because he “applied his

extensive engineering experience and his experience evaluating, testing, and

operating forklifts to the facts of Mr. Hanshaw’s accident.” The majority opinion

adopts a similar approach and focuses on B.R.’s qualifications and absent

writings to support his opinions. While B.R.’s qualifications are significant, they

alone are insufficient to establish that the trial court abused its discretion in

exercising its gatekeeping function and finding that his opinions were not

sufficiently reliable.

III. Hanshaw’s Failure to Address the Reliability Requirements

of Section 490.065.2(1)(b)-(d) Should Come as No Surprise

Given That He Quotes and Applies the Incorrect, Former,

Version of Section 490.065 in His Response to the Motion

to Exclude.

Hanshaw simply did not meet his burden before the trial court, but this

cannot come as a surprise. From the outset, Hanshaw’s Response and

Memorandum in Opposition to Defendant Crown Equipment Corporation’s

Motion to Exclude [B.R.] (“Hanshaw’s Response” or “Response”) in the trial

16
court utilized the incorrect, former, version of section 490.065.12 See Section I,

above. This renders it clear how and why Hanshaw failed to address current

section 490.065.2(1)(b)-(d)’s reliability prong, and buttresses the trial court’s

decision. From the outset, Hanshaw failed to state the correct law applicable to

his case, failed to acknowledge the correct standard, and accordingly, could not

make a serious attempt to show that the requirements of section 490.065.2(1)(a)-

(d) were met. A review of Hanshaw’s Response is appropriate to properly

understand what Hanshaw presented to the trial court, and thus why the trial

court excluded B.R.

On page 1 of his Response, Hanshaw asserts “Crown’s Motion to Exclude

fails because [B.R.] is qualified as an expert under [section] 490.065.2. As held

by the Missouri Supreme Court, the remaining factors of the analysis . . . go to the

weight the jury is to give his opinions, not their admissibility.” (emphasis added).

For this proposition, Hanshaw cites Kivland v. Columbia Orthopaedic Grp., LLP,

331 S.W.3d 299, 311 (Mo. banc 2011). Hanshaw’s emphasis solely on B.R. being

“qualified” is simply incorrect, given that pursuant to the current version of

section 490.065.2 an expert must be qualified and his opinions must meet the

four requirements of the reliability prong. Further, the requirements of the

reliability prong do not simply “go to the weight,” as Hanshaw alleges in citing

12 Though Hanshaw cited the currently applicable version, section 490.065.2, the

verbiage quoted and applied is the former section 490.065 in its entirety, as discussed
below.

17
Kivland, but rather must be met just as the “qualified” requirement is met. And,

Kivland simply does not address the four requirements of the reliability prong in

the current section 490.065.2(1)(a)-(d); Kivland was decided six years prior to

the 2017 amendment to Section 490.065. How Hanshaw could suggest that the

“remaining factors of the analysis,” i.e. the reliability requirements, simply “go to

the weight” is simply an inaccurate recitation of today’s law. Nowhere in his

Response does Hanshaw assert that B.R.’s opinions satisfy the reliability

requirements of section 490.065.2(1)(a)-(d); these requirements are not even

identified.

Further, in setting forth the legal standard used in his Response, Hanshaw

doubles down, again quoting Kivland, “The statute simply provides that the

circuit court is responsible for determining whether (1) the expert is qualified; (2)

the expert's testimony will assist the trier of fact; (3) the expert's testimony is

based upon facts or data that are reasonably relied on by experts in the field; and

(4) the facts or data on which the expert relies are otherwise reasonably reliable.”

Kivland, 331 S.W.3d at 310-11. This does nothing more than paraphrase the

former section 490.065.

18
And, finally in his Response, Hanshaw quotes the former section 490.065

in toto,13 not the current version of 490.065 rightly applicable to this case.14

Hanshaw then quotes Kivland again, stating, “[These] straightforward statutory

words are all you really need to know about the admissibility of expert testimony

in civil proceedings.” Kivland, 331 S.W.3d at 311 n.14. The majority simply

cannot get around this detail.

Hanshaw’s reliability discussion presented to the trial court consists of a

single page in his Response. Here, Hanshaw makes fleeting reference to State ex

rel. Gardner v. Wright, 562 S.W. 3d 311, 319 (Mo. App. E.D. 2018), his only

reference to caselaw decided after current section 490.065 was enacted. In a

single sentence, he quotes Gardner, stating that “[t]estimony is reliable if is

“based on sufficient facts or date, reliable principles and methods and reliable

application thereof.”” Yet, he makes no effort to apply same, nor does he attempt

to address current section 490.065.2(1)(b)-(d) anywhere else in his Response.

Rather, Hanshaw pivots his “reliability” discussion, citing various pre-2017 cases

for the general standard as to when evidence of similar accidents is admissible.

He does not relate these cases to the admissibility requirements of B.R.’s

13 As previously stated in n.3, the current section 490.065.1 is nearly identical to

former section 490.065. Here, however, it is evident Hanshaw mistakenly quoted (and
then applied) the former statute because the quote lacks the prefatory language
contained in current section 490.065.1.
14 The majority opinion and I agree that the current version of the statute is

rightly applicable to this case. See Stiers v. Dir. of Revenue, 477 S.W.3d 611, 618 (Mo.
banc 2016); State ex rel. Tipler v. Gardner, 506 S.W.3d 922, 925 (Mo. banc 2017)
(“[T]he rules of evidence in effect at the time of trial govern.”).

19
testimony under section 490.065.2(1), and indeed they in no way relate to it.

Hanshaw concludes his one-page “reliability” argument15 to the trial court by

once again referring back to his tried and true – and incorrect – argument that

Crown’s arguments to exclude B.R.’s testimony is “only relevant to the

persuasiveness of [B.R.’s] opinions, and thus go to the weight of the evidence and

not its admissibility.” (emphasis added).

In truth, current section 490.065.2(1)(a)-(d) was simply not addressed.

Hanshaw never sought to make any kind of showing as to the bases for B.R.’s

opinions – such as the facts, data, principles or methods, underlying any of his

opinions as required by current section 490.065.2(1)(b)-(d), nor did he provide

the opinions themselves. Hanshaw failed in these respects despite having the

burden to establish the admissibility of B.R.’s testimony. 16

15 To the extent Hanshaw mentions reliability in his Response, it appears to refer

to “reliable” as it is used in former section 490.065.3 (“The facts or data in a particular
case upon which an expert bases an opinion or inference may be those perceived by or
made known to him at or before the hearing and must be of a type reasonably relied
upon by experts in the field in forming opinions or inferences upon the subject and must
be otherwise reasonably reliable.”). In his two-paragraph reliability argument,
Hanshaw states, “the arguments raised by [Crown] does [sic] not render the testimony
inadmissible pursuant to section 490.065.2. The differences identified by [Crown] are
only relevant to the persuasiveness of [Expert’s] opinions, and thus go to the weight of
the evidence and not its admissibility,” once again in reference to the aforementioned
Kivland quote regarding former section 490.065.
16 In fact, the only evidence to which he cited in his Response were B.R.’s

aforesaid curriculum vitae and affidavit. Though the majority has threaded together
pieces of B.R.’s deposition to ostensibly present his conclusion, Hanshaw himself refers
us solely to matters outside the record for same. Upon being asked at oral argument
where in the record we could find B.R.’s opinion, Hanshaw’s counsel referred this court
solely to a PowerPoint presentation, a “multi-slide recitation . . . of [B.R.’s] opinions.”
Yet, as the majority pointed out to counsel during such argument, this PowerPoint was
not part of the record. Further, when asked why he was making a distinction between
20
Being generous, it is clear Hanshaw suffers under some level of

misunderstanding of the current law. He has misquoted the law and applied case

law which set forth the framework of the prior statute. Given this, and other

missteps mentioned herein, it is clear Hanshaw misapprehended the current

state of the law in his Response to Crown’s motion to exclude B.R.

This misapprehension of the applicable standard of law not only affects

Hanshaw’s legal argument, it affects what evidence he provided the trial court in

his Response. As discussed in prior sections, Hanshaw did not demonstrate what

facts or data B.R. considered in forming his opinions as required in section

490.065.2(1)(b), how B.R.’s opinions were the product of reliable principles and

methods as required in section 490.065.2(1)(c), or how B.R. reliably applied the

principles and methods he used to the facts of the case as required by section

490.065.2(1)(d). It comes as no surprise that the evidence Hanshaw provided

with his Response did not demonstrate these matters, for Hanshaw’s

the federal rule and the post-2017 statute that almost directly tracks the federal rule,
counsel for Hanshaw stated, “because in Missouri unlike federal court, your basing a
ruling on the efficacy [sic] of expert testimony strictly and almost exclusively on the
record that the defense creates by deposing the expert.” This is simply not the case.
Hanshaw acts as if he is simply a bystander in a motion to exclude, yet it is clear that as
the proponent of expert testimony, Hanshaw “bore the burden of establishing that [the]
expert testimony satisfied the foundational requirements of [Section] 490.065.2(1)” in
the trial court. State v. Antle, 657 S.W.3d 221, 234 (Mo. App. W.D. 2021). Counsel for
Hanshaw was then asked, could he not have requested a hearing at which he could have
presented evidence regarding the admission of his expert, to which he replied “[n]o
question about it.” Yet, curiously, counsel repeatedly pointed out that Hanshaw did not
object to no hearing being held. Such references simply compound the problem of proof
inherent in pleading and attempting to support his expert using the former statutory
scheme.

21
misapprehension of the current law dictated what materials he presented to the

trial court in support of his position. In short, this Response was not prepared to

address the current statute, nor did it provide the necessary exhibits to address

the current statute, and to no surprise, if failed in any attempt to do so.

Must we have any further indication of what Hanshaw was attempting to

prove in preparing his Response and the exhibits thereto for the trial court’s

consideration? In a nutshell, this explains the “analytical gap” found by the trial

court. This was the argument presented to the trial court and the majority simply

cannot get around that.

Despite having the burden to establish the admissibility of B.R.’s

testimony, this Response and its attached materials are all that Hanshaw armed

the trial court with to render a decision as to whether to exclude B.R. Now, at the

appellate level, Hanshaw’s trouble is that he is confined to the trial court’s record,

a record which was not prepared to prove out section 490.065.2(1)(b)-(d)’s

requirements. This is also why the majority opinion must manufacture the

argument Hanshaw could have made, but did not, at the trial court level. The

majority opinion fails to mention any of these noteworthy errors.

IV. Based Upon Our Standard of Review, The Trial Court Did

Not Abuse Its Discretion.

The trial court found that Hanshaw failed in his task of meeting the

requirements of current section 490.065.2(1). This should come as no surprise

to Hanshaw. In quoting, applying, and presenting the trial court evidence

22
regarding a statute that had been completely overhauled, how could his argument

to the trial court result in anything more?

Hanshaw simply failed in his burden of meeting the requirements of

section 490.065.2(1)(b)-(d). The majority opinion is quick to criticize the trial

court about its recitation of the record; yet, it is the majority opinion that strays

from the circumstances then before the trial court. The majority opinion claims

that the trial court abused its discretion in failing to find B.R.’s opinions reliable;

however, the majority opinion’s claims are based solely on assertions from B.R.

that he reliably reviewed undisclosed reports and data. Here, it is the majority

opinion that tries to address what Hanshaw could have, but did not, and which

Hanshaw failed to make part of the record. The trial court is simply not required

to blindly accept B.R.’s own self-serving, ipse dixit, assertions about the bases for

his decision in light of section 490.065.2(1)(b)-(d).

By way of example, the majority opinion notes that B.R. testified in his

deposition that he conducted tests of egress times from a forklift similar to the

subject forklift with a door attached. The trial court recognized this in its order,

and noted that B.R. had claimed to have attached a door to a forklift similar to

the subject forklift, but found that no results of such testing had been provided.

The trial court recognized that B.R. indicated that he had conducted some testing,

but noted: “[B.R.] has not shown the reliability of this testing and how it relates

to and supports his proffered designs.” In doing so, the trial court applied the

requirements set forth by the legislature in section 490.065.2(1)(b)-(d).

23
Nevertheless, the majority opinion ignores the trial court’s reasons for granting

the motion to exclude and engages in criticisms based on the trial court’s refusal

to blindly accept as reliable a study that was not before the trial court.

Apparently, the majority opinion takes the position that the only thing a trial

court needs to evaluate when determining whether testing has been conducted

reliably is the proffered expert’s descriptions of the testing, without results, and

regardless of whether such expert states that he actually relied on such testing.

Such a position misstates the law and does nothing to show B.R.’s opinions are

the product of reliable principles and methods in conformance with section

490.065.2(1)(c), or to show that section 490.065.2(1)(d) was met.

The majority opinion is also critical of the trial court, stating the “primary

basis on which the circuit court found [Proposed] Expert’s opinions to be

unreliable was because ‘[h]e cannot point to any door design or bumper he has

developed, prototyped, or tested, or any testing to measure the injury potential to

stand-up forklift operators in off-dock and tip-over accidents on forklifts

equipped with a door or bumper.’” (Majority p. 16). The majority opinion

indicated that this statement misapplied the law and misstated the record.

Though labeling this as the trial court’s “primary basis” for determining B.R. to

be unreliable is convenient to the majority opinion’s narrative, it is simply not the

case, nor does the statement misapply the law. Rather, just as we did in

Gebhardt, the trial court noted the lack of testing conducted by B.R. and noted

24
that B.R. had not shown the reliability of the testing he had performed or how it

related to and supported his opinions. See Gebhardt, 627 S.W.3d at 46.

The most compelling basis upon which the trial court found B.R. to be

unreliable is its learned analysis addressing section 490.065.2(1)(b)-(d). The

trial court acknowledged that Hanshaw had indicated that B.R. had published

papers, but specifically stated Hanshaw gave the trial court no indication how the

papers were relevant to or supported the opinions at issue:

Plaintiff notes [B.R.] published peer reviewed papers related to
forklift design, including a paper specifically addressing the forklift
at issue here and a technical paper on forklift safety. However,
Plaintiff provided no indication these papers were relevant to or
supported [B.R.]’s opinions at issue here. Plaintiff contends for this
case, [B.R.] analyzed Crown’s accident data reported by Crown and
OSHA data regarding accidents and injuries and used this
information in developing his opinions, but he did not demonstrate
how he used the data, how the data supported his opinions, and
whether his use of the data was acceptable in the scientific
community. Failure to thoroughly explain methodology to support
expert opinion weighs in favor of exclusion. Gebhardt v. Am.
Honda Motor Co., 627 S.W.3d 37, 45 (Mo. Ct. App. 2021)
(speculative foundation and lack of confirmatory testing, third-party
validation or other facts and data buttressing the reliability of the
methods applied or conclusions is a sufficient basis to exclude);
Dhillon v. Crown Controls Corp., 269 F.3d 865, 870 (7th Cir. 2001)
(without a detailed explanation of methodology, a court cannot
assess the reliability of the testimony).

(emphasis added). Regarding the bases for B.R.’s opinions, the circuit court

found that Hanshaw failed to explain the methodology behind B.R.’s opinions.

And, ironically, the majority opinion is absolutely silent on the trial court’s

fundamental analysis which utilized this Court’s Gebhardt analysis.

25
In short, in following the Gebhardt analysis, the trial court did what the

majority opinion has yet to do; specifically follow section 490.065.2(1)(a)-(d)’s

requirements to determine reliability. But then, neither the majority opinion nor

Hanshaw could follow section 490.065.2(1)(a)-(d)’s requirements given that

Hanshaw quoted and applied former section 490.065, which naturally permeated

the evidence he produced for the trial court’s consideration, and ours.

“We 'will affirm on any ground that supports the circuit court's judgment,

regardless of the grounds on which the circuit court relied.'" KC Air Cargo

Servs., Inc v. City of Kan. City, 581 S.W.3d 685, 690 n.3 (Mo. App. W.D. 2019)

(quoting Stanley v. State, 420 S.W.3d 532, 543 n.9 (Mo. banc 2014)). The

majority opinion is highly critical of the trial court’s determination that B.R. was

not qualified, and that criticism monopolizes the majority opinion. Here,

however, regardless of the trial court’s determination of qualification, its

determination that B.R.’s opinions were not reliable pursuant to section

490.065.2(1)(b)-(d) is sufficient to affirm the trial court’s decision.

“The circuit court ‘enjoys considerable discretion in the admission or

exclusion of evidence.’” Shallow v. Follwell, 554 S.W.3d 878, 881 (Mo. banc 2018)

(quoting Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451 (Mo. banc 2014)). “A

circuit court abuses its discretion when its ‘ruling is clearly against the logic of the

circumstances then before the court and is so unreasonable and arbitrary that it

shocks the sense of justice and indicates a lack of careful, deliberate

consideration.’” Shallow, 554 S.W.3d at 881 (quoting Lozano, 421 S.W.3d at 451).

26
“‘If reasonable persons can differ as to the propriety of the trial court’s action, then

it cannot be said that the trial court abused its discretion.’” Sherry v. City of Lee’s

Summit, 623 S.W.3d 647, 658 (Mo. App. W.D. 2021) (quoting Lozano, 421 S.W.3d

at 451)).

I have previously set forth the two very different versions of section 490.065;

the pre-2017 former version and the post-2017 current version. I have also set

forth Hanshaw’s recitation and application of the incorrect, pre-2017 former

version, as well as his reliance on pre-2017 caselaw to bolster his case. This

rendered Hanshaw’s Response and the arguments therein of little assistance to the

trial court. Further, one must recognize that along with his application of the

wrong version of the statute, the documentation provided with his Response to the

motion to exclude B.R. was necessarily hampered by the same misunderstanding

of the law. In short, Hanshaw provided the trial court with materials which

supported only his pre-2017 former 490.065 arguments. Given the additional

requirements contained in current section 490.065.2(b)-(d), it is apparent

additional materials to support these requirements would be necessary, and our

record fails to support these additional requirements. Under these circumstances,

where the trial court applied our most recent application of section 490.065 in

Gebhardt to a Response and accompanying exhibits put together to meet a former

version of the statute, the trial court’s ruling was not clearly against the logic of the

circumstances then before the court and was not so unreasonable and arbitrary so

as to shock the sense of justice or indicate a lack of careful, deliberate

27
consideration. See Shallow, 554 S.W.3d at 881.

Conclusion

For these reasons, I would affirm the trial court’s decision. To that extent,

I respectfully dissent from the majority opinion.

______________________________
W. Douglas Thomson, Judge

J. Chapman, concurring.

28
IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
CHRISTOPHER HANSHAW, )
)
Appellant, )
)
v. ) WD86389
)
CROWN EQUIPMENT CORP., ET AL, ) Filed: April 1, 2025
)
Respondent. )
DISSENTING OPINION

I join Judge Thomson in his well stated dissent and write separately, as I wish to

put a finer point on the majority’s failure to fully respect the circumstances before the

trial court when it was assessing the admissibility of B.R.’s opinions, and its resulting

failure to respect the standard of review. The majority ignores the fact that Hanshaw

failed to acknowledge or attempt to satisfy the reliability requirements set forth in section

490.065.2. Similarly, the majority fails to appreciate the materials to which the trial court

was directed. The majority then goes on to fault the trial court for accurately assessing

the record before it, and appears to take the unfounded position that trial courts are

required to assume that a proffered expert’s opinions are reliably formed simply because

the expert claims they are based on testing or analysis that the expert need not disclose to
the trial court. Because the trial court did not abuse its discretion in determining that

Hanshaw failed to satisfy the burden of establishing that B.R.’s opinions were reliably

formed, I would affirm the trial court’s judgment.

The circuit court “enjoys considerable discretion in the admission or exclusion of

evidence.” Shallow v. Follwell, 554 S.W.3d 878, 881 (Mo. banc 2018) (quoting Lozano

v. BNSF Ry. Co., 421 S.W.3d 448, 451 (Mo. banc 2014)). “The admission or exclusion

of evidence will not be grounds for reversal absent a clear abuse of discretion.” Id. “A

circuit court abuses its discretion when its ruling is clearly against the logic of the

circumstances then before the court and is so unreasonable and arbitrary that it shocks the

sense of justice and indicates a lack of careful, deliberate consideration.” Id. (internal

quotations omitted).

II.

Section 490.065 governs the admission of expert testimony in Missouri courts.

Since August 28, 2017, there are two separate standards that may apply depending on the

type of action brought. Compare § 490.065.1 (setting forth one standard to govern in

certain categories of cases), with § 490.065.2 (setting forth a distinct standard to govern

in all other cases). “[T]he rules of evidence in effect at the time of trial govern.” Stiers v.

Dir. of Rev., 477 S.W.3d 611, 618 (Mo. banc 2016); State ex rel. Tipler v. Gardner, 506

S.W.3d 922, 925 (Mo. banc 2017).

Section 490.065.2 governs the admissibility of expert testimony in this case. As

relevant to this case, section 490.065.2(1) provides:

2
(1) A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:

(a) The expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;

(b) The testimony is based on sufficient facts or data;

(d) The expert has reliably applied the principles and methods to the facts
of the case[.]

(emphases added). The plain language of this standard makes clear that a witness who is

qualified as an expert may provide opinion testimony and other testimony if four

additional requirements are also met. In other words, the statute makes it clear that

qualification alone is not enough; rather, a proponent of a proffered expert must also

make a sufficient showing regarding the four additional requirements. See §

490.065.2(1)(a)-(d).1

1
Although the above interpretation follows from the plain language of section 490.065.2,
the history of section 490.065.2 further reinforces this uncontroversial interpretation. When the
General Assembly enacted the standard currently set forth in section 490.065.2(1), it adopted
word-for-word the standard set forth in Rule 702 of the Federal Rules of Evidence (as the Rule
existed following the 2011 amendments to Federal Rule 702). Although minor stylistic
alterations were made to Federal Rule 702 in 2011, the prior 2000 amendments to Federal Rule
702 remained the substantive form that Federal Rule 702 held when adopted by Missouri in
2017. The Advisory Committee Notes to the 2000 Amendments explained these substantive
changes and reinforced what was clear from Rule 702’s language – that Rule 702’s requirements
were indeed requirements:

Rule 702 has been amended in response to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and to the many cases applying
Daubert, including Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). In
Daubert the Court charged trial judges with the responsibility of acting as
gatekeepers to exclude unreliable expert testimony, and the Court in Kumho
clarified that this gatekeeper function applies to all expert testimony, not just
3
III.

The majority opinion fails to give due regard to the circumstances before the trial

court. As a result, the majority opinion fails to properly apply our standard of review.

Instead of evaluating the circumstances before the trial court, the majority faults the trial

court for failing to consider arguments and materials that Hanshaw never presented to the

trial court and for failing to independently review the lengthy exhibits attached to the

summary judgment materials in light of the presentation that Hanshaw could have made

but did not.

In response to the motion to exclude filed by Crown Equipment Corporation

(“Crown”), Hanshaw carried the burden of establishing that the requirements of section

490.065.2(1) were met. See State v. Antle, 657 S.W.3d 221, 234 (Mo. App. W.D. 2021).

However, Hanshaw’s response to the motion to exclude failed to set forth the applicable

standard under section 490.065.2(1). Instead, Hanshaw set forth an inapplicable version

testimony based in science. See also Kumho, 119 S.Ct. at 1178 (citing the
Committee Note to the proposed amendment to Rule 702, which had been
released for public comment before the date of the Kumho decision). The
amendment affirms the trial court's role as gatekeeper and provides some general
standards that the trial court must use to assess the reliability and helpfulness of
proffered expert testimony. Consistently with Kumho, the Rule as amended
provides that all types of expert testimony present questions of admissibility for
the trial court in deciding whether the evidence is reliable and helpful.
Consequently, the admissibility of all expert testimony is governed by the
principles of Rule 104(a). Under that Rule, the proponent has the burden of
establishing that the pertinent admissibility requirements are met by a
preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171
(1987).

Advisory Committee Notes, Fed. R. Evid. 702 (2000).
4
of the statute, asserted that his expert was qualified, argued that qualification was

dispositive, and argued that everything else went to the weight the jury was to give B.R.’s

opinions, rather than their admissibility. After failing to acknowledge the requirements

set forth in section 490.065.2(1)(b)-(d) regarding reliability, Hanshaw unsurprisingly

failed to make a legitimate attempt to satisfy such requirements.

As relevant, Hanshaw’s response to the motion to exclude indicated that B.R.

would opine that the open operator compartment of the subject forklift renders it

defective. Hanshaw’s response presented an argument regarding B.R.’s qualifications.

At the end of that argument regarding qualification, Hanshaw asserted that “the fact that

[B.R.] is qualified as an expert under the statute is dispositive of the exclusion effort

against him because the other factors of the analysis go to [sic] weight of his opinions,

not their admissibility.” Hanshaw cited to a 2011 Missouri Supreme Court for this

proposition. See Kivland v. Columbia Orthopaedic Grp., LLP, 331 S.W.3d 299, 311

(Mo. banc 2011).

However, Kivland was handed down in 2011. The standard set forth in section

490.065.2 did not exist in Missouri law until 2017. Kivland certainly cannot be

understood as interpreting a statute that did not then exist. The plain language of section

490.065.2 makes clear that the current standard contains reliability requirements that

must be met.2

2
Moreover, the standard addressed in Kivland still exists and governs the admission of
expert testimony in certain categories of cases. See § 490.065.1. It cannot be (and is not) the
case that the legislature intended to adopt a new and distinct standard in section 490.065.2, and
yet intended that new standard to be interpreted in exactly the same manner as the prior standard.
5
After having argued that qualification was dispositive, Hanshaw’s response to the

motion to exclude failed to present arguments to the trial court relevant to reliability and

failed to direct the trial court to materials that would satisfy the reliability requirements of

section 490.065.2, such that Hanshaw’s showing regarding reliability amounted to little

more than a conclusory assertion that B.R.’s opinions were reliable. After arguing that

qualification was dispositive and making the conclusory assertion that B.R.’s opinions

were reliable, Hanshaw’s response to the motion to exclude cited inapposite case law that

did not bear on the admissibility of expert testimony. Hanshaw then asserted under a

separate bold heading that “[B.R.] is permitted to offer alternative safe designs.”

Hanshaw then noted that evidence of a reasonable alternative design may be introduced

in a design defect action and that B.R. opines that the installation of a door on the subject

forklift “would improve its overall safety.” Hanshaw then indicated that B.R. derived

this opinion after obtaining a predecessor to the subject forklift and attaching a door to it.

In determining whether the trial court abused its discretion, appellate review

necessarily examines whether the trial court’s ruling “is clearly against the logic of the

circumstances then before the court and is so unreasonable and arbitrary that it shocks the

sense of justice and indicates a lack of careful, deliberate consideration.” Shallow, 554

Missouri courts have long recognized that the power to prescribe or alter rules of evidence rests
with the legislature. See State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d
146, 154 n.10 (Mo. banc 2003) (citations omitted). Nevertheless, Missouri courts regularly cite
to Kivland as though it was a case interpreting section 490.065.2 when Kivland does no such
thing. In fact, in Kivland the Missouri Supreme Court made abundantly clear that the statutory
language governs the admissibility of expert testimony in Missouri. See Kivland, 331 S.W.3d at
310 n.14 (citation omitted). Thus, even if Kivland stood for the proposition that Hanshaw
suggests, Kivland would be inapposite in light of the statutory amendments.

6
S.W.3d at 881. Here, the circumstances before the trial court included Hanshaw’s failure

to acknowledge the statutory requirements regarding reliability, his incorrect assertion

that qualification was dispositive, and his corresponding failure to provide a meaningful

basis to support his assertion that B.R.’s design-defect opinions were reliable. By

ignoring these circumstances, the majority essentially takes the position that it is

completely unnecessary for a proponent of expert testimony to present relevant

arguments to the trial court in response to an effort to exclude expert testimony. Instead,

the majority appears to suggest that the trial court is required to sift through the record

before it in light of arguments that could have been but were not presented to the trial

court.3

3
The majority opinion propagates the confusion suffered by Hanshaw (that qualification
is dispositive) by repeating statements from cases out of context, such that the majority’s
standard has a high potential to mislead. The majority cites a footnote in Linton for the
proposition that “[s]o long as the expert is qualified, any weakness in the expert’s knowledge is
for the jury to consider in determining what weight to give the expert.” See Linton by & through
Linton v. Carter, 634 S.W.3d 623, 628 n.5 (Mo. banc 2021) (quoting Kivland, 331 S.W.3d at
311). Although this statement originated from Kivland, a case interpreting a different statutory
standard, the Missouri Supreme Court in Linton, by repeating this statement in a footnote while
interpreting the current version section 490.065.2, provided some indication that the statement
could apply to the current version of section 490.065.2. However, Linton also made absolutely
clear, in the body of the opinion, that “[e]xpert testimony in civil cases is inadmissible unless it
satisfies the evidentiary requirements of section 490.065.” Id. at 626.
Linton also made clear that, for cases governed by section 490.065.2, the evidentiary
requirements include those expressly set forth in section 490.065.2(1)(a)-(d). See Linton, 634
S.W.3d at 626 & n.4. Regarding whether alternative causation testimony is admissible, Linton
concluded that it was admissible when it met the statutory requirements. Id. at 628. And, in
addressing whether the expert testimony was admissible in the case then before the court, Linton
clearly indicated that it found the proffered testimony was admissible because the expert was
qualified, and because the record was “replete with proof” that the expert “applied reliable
principles and methods to the facts” of the case that could aid the trier of fact. Id. at 630. Thus,
the Kivland quote footnoted in Linton is clearly addressed to assessing qualification and is not
accurate in a wider context unless it is understood to presume that the other admissibility
requirements have also been satisfied. In spite of the patently obvious confusion suffered by
7
B.

In the majority’s efforts to overlook the flaws with Hanshaw’s response to the

motion to exclude, the majority faults the trial court for failing to scour the lengthy

summary judgment record independently for materials beneficial to Hanshaw without

regard to whether Hanshaw directed the trial court to such materials and without regard to

whether the summary judgment materials that Hanshaw did cite would support a

conclusion that B.R. had reliably formed his opinion that the subject forklift was

defectively designed due to its open operator compartment.

The majority asserts that the trial court was provided all of the materials necessary

to assess the reliability of B.R.’s design-defect opinions. The majority asserts that B.R.’s

deposition and affidavit were provided to the trial court in opposing Crown’s motion to

exclude. The majority even asserts that Hanshaw’s response to the motion to exclude

included citations to B.R.’s deposition despite the fact that Hanshaw’s response to the

motion to exclude did not include a single citation to B.R.’s deposition. Based on these

assertions, the majority then takes the apparent position that the trial court was required

Hanshaw in his response to the motion to exclude, the majority nevertheless presents the
standard in a way that compounds such confusion going forward, by selectively quoting a
footnote from Linton that in turn quoted an earlier case interpreting a different statute not
applicable here.
The majority also quotes Crowder for the proposition: “If the expert is sufficiently
qualified, . . . the decision to accept his or her analysis of the facts and data is for the jury to
decide.” See Crowder v. Ingram Barge Co., 681 S.W.3d 641, 646 (Mo. App. E.D. 2023). This
statement, taken out of context, is simply not an accurate representation of the admissibility
standard. The majority apparently takes the position that a proponent of expert testimony does
not need to put forth an argument regarding reliability, giving the erroneous impression that the
reliability requirements expressly set forth in a rule of evidence created by the General Assembly
are optional. They are not.

8
to sift through the entirety of B.R.’s 169-page deposition for passages favorable to

Hanshaw regardless of whether Hanshaw directed the trial court to such passages. The

problem with the majority’s assertions is that these assertions do not accurately describe

the record and do not properly apply the appellate standard of review.

Hanshaw responded to Crown’s motion for summary judgment and motion for

exclusion with a sequence of filings on the same day. Hanshaw filed a response to the

summary judgment motion, which included a statement of additional facts, and five

attached exhibits, including B.R.’s affidavit and B.R.’s 169-page deposition. Hanshaw

filed a response to Crown’s motion to exclude shortly thereafter.

I recognize that the exclusion proceedings and the summary judgment proceedings

were briefed in short succession and that some of the materials had some relevance to

both proceedings. However, I note that Crown’s summary judgment motion was

conditional in that it requested summary judgment on Hanshaw’s claims in the event that

the trial court granted Crown’s motion to exclude. Consequently, the procedural posture

of the case asked the trial court whether to grant the motion to exclude, and, if so,

whether to grant summary judgment to Crown on Hanshaw’s claims. Conversely, if the

trial court declined to grant the motion to exclude, then the only issue left for the trial

court on Crown’s motion for summary judgment would have been whether to grant

summary judgment on the issue of punitive damages. Given the issues presented to the

trial court, whether to grant the motion to exclude was logically the first issue for the trial

court to assess.

9
Despite the majority’s assertion to the contrary, Hanshaw’s response to the motion

to exclude did not include a single citation to B.R.’s deposition. Hanshaw’s response did

include a citation to B.R.’s affidavit with an explanation of the affidavit’s importance to

B.R.’s qualifications. Primarily, Hanshaw’s citations to the record in his response to the

motion to exclude were to the numbered paragraphs in his additional statement of facts

that he submitted in the summary judgment record pursuant to Rule 74.04(c).

Throughout the qualification portion of Hanshaw’s response to the motion to exclude,

Hanshaw cited to the numbered paragraphs in his additional statement of facts for factual

propositions that could weigh on B.R.’s qualifications. In the reliability portion of

Hanshaw’s response, Hanshaw did not include any citations to any materials in the

record. Then, in a portion arguing that B.R. should be permitted to offer alternative

designs, Hanshaw included eight citations to his additional statement of material facts

filed in his response to Crown’s summary judgment motion. Of these eight citations,

only four were related to B.R.’s deposition. One of the four related to an issue on which

the majority and I do not disagree (the exclusion of B.R.’s opinion that the forklift was

defective for a lack of a bumper).

The three remaining statements of fact to which Hanshaw cited in the portion of

his response to the motion to exclude that could arguably be characterized as a discussion

regarding reliability are as follows:

15. In 2015, [B.R.] obtained a Crown RC-3000 which he modified to
include a door.

....

10
20. Installing a latching door on the RC5500 would improve the safety of
the subject forklift.

21. Installing a spring-loaded door on the RC5500 would improve the
safety of the subject forklift.

These stated facts indicate that B.R. had two opinions about the safety of the subject

forklift and that B.R. had once attached a door to a different model of Crown forklift.

Such assertions do not provide the trial court with a means to conclude that B.R.’s

design-defect opinions were reliably formed.

The majority’s assertion that Hanshaw’s response to the motion to exclude cited to

B.R.’s deposition is simply not correct as that document contains no citations to B.R.’s

deposition. The majority apparently believes that a citation to deposition material in

support of a numbered paragraph in a statement of facts offered in summary judgment

proceedings pursuant to Rule 74.04(c) is in effect a citation to a deposition. However,

this belief would require the majority to use the material cited in support of Hanshaw’s

Rule 74.04(c) numbered paragraphs for a purpose that is inappropriate for a trial court to

do even in assessing summary judgment.

As is well-established, trial courts (and consequently appellate courts) determine

the propriety of summary judgment based on the Rule 74.04(c) record of numbered

paragraphs and responses and not the whole record before the trial court. See Green v.

Fotoohighiam, 606 S.W.3d 113, 117 (Mo. banc 2020) (citation omitted). As is also well-

established, materials cited in support of a numbered paragraph in a statement of facts

play only a secondary role in determining the propriety of summary judgment, and then

“only as cited to support Rule 74.04(c) numbered paragraphs or responses, since parties

11
cannot cite or rely on facts outside the Rule 74.04(c) record.” Id. (citation omitted)

(emphasis in original). In other words, the materials cited in support may illuminate the

factual proposition asserted in the numbered paragraphs but such secondary materials are

not to be the independent source of new factual propositions in summary judgment

proceedings. See id. at 117-118.

Although the procedural posture of the case necessarily presented the exclusion

issue to the trial court prior to the issue of whether summary judgment on Hanshaw’s

claims was proper, I see no problem with Hanshaw citing, in his response to the motion

to exclude, to the numbered paragraphs in his statement of facts in the summary

judgment proceeding – at least insofar as the Rule 74.04(c) paragraphs were being cited

for the factual propositions asserted in those paragraphs. However, even in summary

judgment proceedings, the materials cited in support of Rule 74.04(c) numbered

paragraphs are only to be considered secondarily and only “as cited to support Rule

74.04(c) numbered paragraphs or responses[.]” Green 606 S.W.3d at 117. In this

matter, the majority loses sight of the limited purpose for which materials cited in support

of Rule 74.04(c)’s numbered paragraphs may be used. In taking the position that a

citation to a numbered paragraph is itself a citation to the material cited in support of such

numbered paragraph, the majority takes the apparent position that any summary judgment

materials cited in support of Rule 74.04(c) paragraphs must be considered in deciding

motions other than summary judgment regardless of whether the use of such material for

such purpose would be improper even in summary judgment proceedings. In other

words, the majority takes the position that such summary judgment materials must be

12
used for a purpose in separate proceedings on a separate motion even though utilization

of such materials in such a manner would be improper even in summary judgment

proceedings.

But, even if we were to examine the citations to B.R.’s deposition in support of the

factual assertions in the numbered paragraphs that were filed for summary judgment

purposes, the deposition portions cited nevertheless failed to provide the trial court with

material with which to assess whether B.R.’s opinions were reliably formed. In support

of the facts asserted in paragraphs 20 and 21 of Hanshaw’s additional statement of facts,

Hanshaw cited to a portion of B.R.’s deposition that merely indicated that B.R. had the

opinions asserted in those paragraphs. This deposition material obviously does not

provide a basis for determining whether these opinions were reliably formed.

In support of the fact asserted in paragraph 15 (“In 2015, [B.R.] obtained a Crown

RC-3000 which he modified to include a door.”), Hanshaw cited to three portions of

B.R.’s deposition that discussed that B.R. had attached a door to an RC-3000 forklift.

One of the cited portions also included a reference to B.R. having conducted egress

testing.4 This material also does not provide a basis for assessing whether B.R.’s

opinions were reliably formed.

4
In support of paragraph 15, Hanshaw cited to three portions of B.R.’s deposition – 57:10 to
59:23; 115:13-22; 116:5-19. Pages 57 through 59 contain no mention of egress testing. The
remaining portions provide, in full:
Q. And obviously you conducted the testing and operators getting off a truck from
an open operator compartment and then you equipped the truck with a door;
correct?
A. Yes.
Q. And what door did you put on the RC-3000 and give us your involvement in
that process?
13
I want to be clear about the crux of the majority’s efforts. The majority faults the

trial court for not having independently scoured the 169 pages of B.R.’s deposition for

the methodologies underlying B.R.’s opinions and the reasons why B.R.’s opinions may

have been reliably formed. This is obvious because the majority opinion contains much

discussion of deposition testimony to which the trial court was never directed by

Hanshaw at any point (even if operating on the assumption that a citation to a numbered

paragraph in a statement of facts was a citation to the materials cited in support of that

factual proposition). Although I do not intend to suggest that motions to exclude be

A. It was a Raymond counterbalance truck door and I’m not sure what you mean
by my involvement in the process.
....
Q. Did it have to be retrofitted to fit the Crown truck?
A. I mean, it had to be fit to the Crown truck, but I was actually surprised, it was a
pretty good fit.
Q. You didn’t have to cut any metal or anything like that, I gather?
A. No.
Q. And was it a Raymond spring-loaded door?
A. Yes, it was. We also equipped the door with a latch, but it was a Raymond
spring-loaded door.
Q. And what type of latch did you use?
A. We equipped it with kind of a crash bar latch.
The above is the full extent of the citations to B.R.’s deposition in support of paragraph 15.
According to the majority, Hanshaw’s citation to paragraph 15 constituted “specific citations to
the portions of [B.R.]’s deposition in which he described the egress-time testing he had
conducted to assess the forklift industry’s claim that a rear compartment door would hinder
operator exit in the event of a stability accident.”
Even if the trial court were obligated (without any prompting by Hanshaw) to scour the
entirety of B.R.’s deposition, B.R.’s deposition is lacking in the details and results of the egress
testing that would allow the trial court to assess whether B.R.’s opinions had been reliably
formed. The majority indicates that it is not relying on documents outside the record, yet is
confident in B.R.’s assertions based on tests he conducted without the benefit of the details and
results of such testing. The majority apparently takes the position that the details are irrelevant
so long as a proposed expert has a conclusion and claims to have performed testing that supports
it.
14
decided in an overly technical manner, it is necessary for the trial court to be a neutral

arbiter rather than an advocate for either party. See State v. Deweese, 540 S.W.3d 490,

494 (Mo. App. W.D. 2018). Consequently, parties carrying the burden of establishing

admissibility should at least be required to bring their arguments and evidence to the trial

court’s attention before expecting the trial court to independently discover such evidence

and consider it in light of arguments and explanations that were not presented to the trial

court.

Regarding B.R.’s affidavit, I agree that Hanshaw sufficiently directed the trial

court’s attention to the affidavit. B.R.’s response to the motion to exclude cited to the

affidavit in discussing B.R.’s qualifications and indicated that the purpose of the affidavit

was to add detail and explanation to B.R.’s curriculum vitae. Hanshaw argued that his

CV and his affidavit would provide the information necessary for evaluating the

qualifications of B.R. The affidavit contains a number of statements relevant to

qualification.5 However, the affidavit does not include material that would provide a

basis for assessing whether B.R. had reliably formed the opinion that the subject forklift

5
The majority suggests that the dissenting opinions “do not attempt to defend the circuit
court’s conclusion that [B.R.] was unqualified.” As the majority knows, appellate courts must
affirm the circuit court’s judgment if it is correct on any ground supported by the record. See
Curtis v. Mo. Democratic Party, 548 S.W.3d 909, 918 (Mo. banc 2018). As the majority also
knows, it is a well-established principle that appellate courts avoid addressing issues that are
immaterial to the resolution of the case before it. See Seay v. Jones, 439 S.W.3d 881, 895 (Mo.
App. W.D. 2014). Because section 490.065.2 contains requirements regarding both qualification
and reliability, the failure of a proponent to meet the reliability requirements is itself grounds for
exclusion rendering an analysis regarding qualification unnecessary. I do not address the
propriety of the trial court’s conclusion regarding B.R.’s qualification (or lack thereof) to render
his opinions, because addressing that issue is not necessary to correctly resolve the case before us
and to thus affirm the trial court’s judgment.

15
was defectively designed due to its open compartment. A statement at the end of the

affidavit indicated that a PowerPoint presentation to detail B.R.’s opinions had been

prepared and attached to the affidavit as an exhibit. However, no such PowerPoint exists

in our record on appeal, and there is no indication in the record as to whether the trial

court was ever provided with that material.

Regarding B.R.’s deposition, this deposition was submitted by Hanshaw as an

exhibit to Hanshaw’s additional statement of facts in his response to the summary

judgment motion, which was filed the same day as Hanshaw’s response to the motion to

exclude. However, contrary to the majority’s assertions, Hanshaw’s response to the

motion to exclude did not include a single citation to B.R.’s deposition. Moreover, much

of the deposition testimony discussed in the majority opinion comes from portions of the

deposition to which the trial court was never directed – not even if considering all of the

materials cited in support of Hanshaw’s 74.04(c) paragraphs.

In sum, the majority fails to properly consider the circumstances before the trial

court. The majority faults the trial court for failing to discover materials that Hanshaw

never cited in his presentation to the trial court, then for refraining from forming such

uncited materials into a coherent presentation that Hanshaw never made. However, our

appellate standard of review is not a de novo review based on the whole record but is

instead acutely focused on the circumstances before the trial court. See Shallow, 554

S.W.3d at 881; see also Rhoden v. Mo. Delta Med. Ctr., 621 S.W.3d 469, 484 (Mo. banc

2021) (“In determining whether the trial court abused its discretion in excluding

evidence, the focus is not on whether the evidence was admissible but on whether the

16
trial court abused its discretion in excluding the evidence.”). Rather than adhering to the

standard of review (whether the trial court abused its discretion in light of the

circumstances before the trial court), the majority steps in where Hanshaw failed and

cobbles together an argument in support of reliability that bears little resemblance to the

presentation made to the trial court.

IV.

The trial court determined that Hanshaw failed to carry the burden of establishing

that B.R.’s design-defect opinions were reliable. This ruling was not an abuse of

discretion.

Regarding reliability, the trial court noted the testing that B.R. had performed and

the testing that B.R. had not performed. Regarding the testing B.R. had performed, the

trial court noted that B.R. “ha[d] not shown the reliability of this testing and how it

relates to and supports his proffered designs.” The trial court then continued to assess

whether B.R.’s opinions were reliably formed in the final paragraph of its reliability

analysis before its conclusion:

Plaintiff notes [B.R.] published peer reviewed papers related to forklift
design, including a paper specifically addressing the forklift at issue here
and a technical paper on forklift safety. However, Plaintiff provided no
indication these papers were relevant to or supported [B.R.]’s opinions at
issue here. Plaintiff contends for this case, [B.R.] analyzed Crown’s
accident data reported by Crown and OSHA data regarding accidents and
injuries and used this information in developing his opinions, but he did not
demonstrate how he used the data, how the data supported his opinions, and
whether his use of the data was acceptable in the scientific community.
Failure to thoroughly explain methodology to support expert opinion
weighs in favor of exclusion. Gebhardt v. Am. Honda Motor Co., 627
S.W.3d 37, 45 (Mo. Ct. App. 2021) (speculative foundation and lack of
confirmatory testing, third-party validation or other facts and data

17
buttressing the reliability of the methods applied or conclusions is a
sufficient basis to exclude); Dhillon v. Crown Controls Corp., 269 F.3d
865, 870 (7th Cir. 2001) (without a detailed explanation of methodology, a
court cannot assess the reliability of the testimony).

In other words, despite the majority opinion’s unfounded conclusion regarding the

“primary basis” for the trial court’s ruling, the trial court’s ruling was clearly based in

large part on the trial court’s inability to determine from the materials before it whether

B.R.’s opinions were reliably formed. The trial court’s ruling was supported by the

record and was not an abuse of discretion.

The majority nevertheless takes the apparent position that the trial court was

required to assume that B.R.’s opinions were reliably formed based on testing B.R.

claimed to have performed without indication in the record before the trial court as to

whether that testing was reliably conducted and without explanation as to the relevance

of such testing. The majority also takes the apparent position that the trial court was

required to assume that Hanshaw’s opinions based on data were reliably formed even

though the record does not support this conclusion. In other words, with respect to the

testing and data purportedly relied on by Hanshaw, the majority takes the apparent

position that B.R.’s conclusions are reliably produced because B.R. says they were.

However, this position is unfounded. See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S.

137, 157 (1999) (“Of course, Carlson himself claimed that his method was accurate, but,

as we pointed out in Joiner, nothing in either Daubert or the Federal Rules of Evidence

18
requires a district court to admit opinion evidence that is connected to existing data only

by the ipse dixit of the expert.”) (internal quotations omitted).6

Regarding the testing conducted by B.R., the trial court correctly recognized that

B.R. had not shown the reliability of such testing. The majority criticizes Crown’s

assertions regarding B.R.’s egress time article. But, as the majority knows, Hanshaw

made no attempt to put that article before the trial court. Nevertheless, the majority

makes assertions regarding what that article did and did not study and even makes

assertions about that article’s similarity to other studies. In doing so, the majority

assumes the study was reliably conducted, and that it reliably supported the conclusion

that B.R. asserted it did. However, the only support the majority has for these

propositions are the assertions of B.R. The trial court was not required to blindly accept

B.R.’s assertions regarding the reliability of his methodologies. See Kumho Tire, 526

U.S. at 157.

6
To be clear, there were reasons for the trial court to be vigilant regarding the principles
and methodologies underlying B.R.’s opinions. Although the majority is correct that industry
and regulatory standards are not dispositive considerations, whether an expert’s theory is
generally accepted in the relevant community is regularly cited as a relevant consideration in
assessing reliability. See State v. Marshall, 596 S.W.3d 156, 160 (Mo. App. W.D. 2020)
(citation omitted). Here, the record indicates that B.R.’s opinions clashed with the safety
recommendations of a private standard-setting society of mechanical engineers as well as
guidance provided by OSHA. Granted, the reliability inquiry focuses on the principles and
methodology underlying a conclusion rather than the conclusion generated; however, it has been
recognized that conclusions and methodologies are not entirely distinct, such that trial courts
may fairly suspect that a conclusion has not been reliably formed when a proposed expert
reaches a conclusion contrary to that of other experts in the field. See Advisory Committee
Notes, Fed. R. Evid. 702 (2000) (citations omitted).

19
Regarding B.R.’s conclusions based on data, the majority suggests that B.R.’s

reviews of data were “detailed” and “comprehensive” and that B.R.’s opinions based on

this data were reliably formed. However, the data purportedly utilized by B.R. is not

contained in the record on appeal, thus making it impossible (for the trial court or the

majority) to determine whether B.R. reliably formed his opinions based on data.

For example, the majority asserts that B.R.’s data analysis focused on publicly

available data from OSHA, and that B.R.’s review of this data indicated that 76% of

lower limb injuries are caused by the operator’s leg inadvertently exiting the operator

compartment. However, nothing in the record indicated that this conclusion was reliably

formed. To be clear, this statistic is not an OSHA statistic, but a statistic that was created

by B.R. based on assumptions and undisclosed subsets of data that were apparently

drawn from OSHA’s database in accordance with an undisclosed methodology.

B.R. testified at his deposition that the 76% statistic regarding injuries being the

result of a limb being inadvertently out of the operator compartment was based on B.R.’s

assumption that 100% of the injuries involving a limb being outside the operator

compartment involved inadvertency. Further, B.R. testified that the 76% calculation was

his own determination based on his own review of reports based on undisclosed searches

he conducted rather than being anything from OSHA’s database.7 In asserting that this

7
Regarding B.R.’s 76% statistic, the following exchange took place at B.R.’s deposition:
Q. [I]s the basis for that calculation, is that anything within OSHA’s
database or in OSHA’s statement or is that just purely you went through the
reports and made that calculation yourself?

20
conclusion is reliable based solely on B.R.’s assertions that he reviewed information, the

majority takes the apparent position that trial courts are required to accept whatever

conclusions a proposed expert offers so long as the proposed expert claims the

conclusions are based on data – even where that data may not exist anywhere outside of

the proposed expert’s mind. The trial court is not required to do so. See Kumho Tire,

526 U.S. at 157.

The majority belabors the point that B.R. was not required to design or test an

alternative design. But it is an unavoidable fact that Hanshaw expressly argued to the

trial court that B.R. should be permitted to testify regarding safer alternative designs.

Hanshaw also informed the trial court that B.R. opined that a door would improve the

“overall safety” of the subject forklift. It is unwarranted for the majority to criticize the

trial court for assessing what testing had and had not been performed, given that whether

a theory has been tested is regularly recognized as being a relevant factor in assessing

reliability. See, e.g., State v. Marshall, 596 S.W.3d 156, 160 (Mo. App. W.D. 2020)

(citation omitted).8 It is particularly unwarranted for the majority to criticize the trial

A. It’s the latter half of your question. I’ve gone through the OSHA
reports, that’s my determination, that’s not OSHA’s calculation.
Q. OSHA never says 76 percent of lower limb injuries are related to
inadvertently moving your leg out of the compartment; correct?
A. I’m unaware of that OSHA statement, no.
8
The majority seems convinced that B.R. reliably formed the conclusion that tip-over
accidents involving an 8,000 lb. forklift “are not very severe accidents in terms of the
acceleration and the forces applied to the operator[.]” However, B.R. acknowledged at his
deposition that he had never conducted any testing involving tipping over a forklift to measure
forces.

21
court for assessing what testing B.R. had and had not conducted in light of the opinions

that Hanshaw directly informed the court that B.R. would offer. In other words, the

majority again loses sight of the circumstances before the trial court, and, in doing so,

loses sight of the abuse of discretion standard. See Shallow, 554 S.W.3d at 881.

The trial court did not abuse its discretion in determining that Hanshaw failed to

satisfy the burden of establishing that B.R.’s opinions were reliably produced. Thus, the

trial court did not err in granting the motion to exclude.9

Conclusion

For these reasons, I would affirm the judgment of the trial court.

___________________________________
Thomas N. Chapman, Judge

9
Hanshaw’s points on appeal were each dependent on establishing error with respect to
the motion to exclude. Because Hanshaw failed to establish error regarding the trial court’s grant
of the motion to exclude, it is unnecessary to discuss Hanshaw’s other points on appeal.

Christopher Hanshaw v. Crown Equipment Corp.

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