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Tabieros v. Clark Equipment Co.9/15/1997
that he conducted product and traffic flow analyses for private commercial enterprises designed to assure productivity and safety, including the adequacy of visibility in connection with material handling equipment. He had previously conducted "a formal visibility study" regarding the Series 510 straddle carrier.
Without objection, the circuit court found Girardi "qualified as an expert for the purposes offered." Thereafter, in the course of Girardi's direct examination, the following exchange transpired:
[Clark's counsel:] Mr. Girardi, after you had completed your inspection of the vehicles and conducted your visibility test and inspection of the scene[,] as well as reviewed the depositions and other information that you talked about in this case, did you come to any opinions to a degree of engineering probability with respect to this case?
A. Yes, I did.
Q. And what are those opinions?
A. Well --
[Plaintiffs' counsel:] Excuse me, I'm going to object at this point, your Honor ....
During an ensuing bench conference, Clark's counsel made an offer of proof that Girardi would
say what Dias could have seen given the configuration of the machine and the position of the operator as he normally would be operating the -- the equipment.
I believe he's qualified to do that. And he would have to be allowed to testify in that area since the allegation is that Dias could not have seen the people on the ground. His testimony will be to the effect that Dias could have seen the people on the ground if he had availed himself of the proper means of operating the machine.
This goes to the area of product misuse, whether the product was defective, because if we can show that Dias[,] operating the machine properly[,] could have avoided the accident, then the machine was not defective.
....
... [Girardi] is going to testify that[,] given the height of Mr. Dias and his location in the cab, with the visibility study he conducted,... Mr. Tabieros... would have been visible as Dias pulled up to pick up the container... and before he started moving in [Tabieros's] direction.
He will also testify that the proper use of the machine is such that when you make a turn, the area of limited visibility opens up, allowing for greater visibility, and that[,] in fact[,] when... Mr. Dias comes very close to Mr. Tabieros, he can see him directly in front of the equipment.
In addition to that, he will testify that[,] if the mirrors had been adjusted properly, . . . Mr. Dias could have seen Tabieros... in the mirrors just by glancing in that direction. He will also testify that Mr. Tabieros was in a dangerous position given the flow of traffic, that he should have been elsewhere.
... Mr. Girardi will also testify that the piece of equipment is so large and so loud that Mr. Tabieros... could not help but see it. And the addition of strobe lights would not have changed the... recognizability... of the machine itself.
This all goes to the area[,] not only of whether the machine is defective[,] but also whether or not there was contributory negligence on the part of Mr. Tabieros.
Notwithstanding Clark's offer of proof, and despite being qualified as an expert in visibility analysis, Girardi was not allowed to testify regarding what, in his opinion based on his study of the machine, the operator (i.e., Dias) of the Series 510 straddle carrier could have seen from the cab at the time of Tabieros's accident. Clark's counsel pointed out to the circuit court that Josephs had been permitted to testify on the plaintiffs' behalf re
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