Texas Supreme Court Reverses $14 Million Verdict Based on Plaintiff’s Expert’s Failure to Test in Products Liability Case

In December, the Supreme Court of Texas demonstrated that it will rigorously examine the basis for expert testimony in products liability cases. A plaintiff’s expert’s failure to test his hypothesis may be fatal to plaintiff’s claims. In Whirlpool Corp. v. Camacho, No. 08-0175, 2009 WL 4728004 (Tex. Dec. 11, 2009), the supreme court reversed a jury award of $14 million to a family who lost their home and their son in a fire that they alleged was caused by a defective dryer.

Santos and Margarita Camacho had purchased the used Whirlpool clothes dryer for use in their mobile home. Several months later, Margarita Camacho smelled smoke and saw fire “coming from the rear part of the dryer and from inside the dryer.” The fire destroyed the trailer home and killed the Camacho’s teenage son who was the only family member unable to escape.

At trial, the Camachos relied on the expert testimony of an electrical engineer who opined that the fire started when clothes in the dryer were ignited by clogged, smoldering lint particles. The Texas Supreme Court, noting that courts are to “rigorously examine” the manner by which an expert applies principles and methodology in reaching his conclusions, disregarded the engineer’s testimony. Citing the Texas version of Daubert, E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995), the court held that testing of machinery in products liability cases is highly significant in providing support for an expert’s conclusions:

Testing is not always required to support an expert’s opinion, but lack of relevant testing to the extent it was possible, either by the expert or others, is one factor that points toward a determination that an expert opinion is unreliable. . . . If testing of critical aspects of an expert’s testimony has not taken place either by the expert or others in the relevant scientific or expert community, then an explanation of why it has not is an important consideration in evaluating the expert opinions and determining whether they are substantively more than merely the expert’s conclusory, subjective opinion.

Id. (internal citations omitted).

Regardless of the expert witness’s level of experience in the applicable field, the court here held that the engineer’s failure to test his theories or to provide evidence of others’ testing was an important factor in its concluding that the engineer’s opinions were unreliable.

This Texas Supreme Court opinion shows that evidence of testing of the allegedly faulty machinery is imperative. Otherwise, as here, the expert’s opinions are “subjective, conclusory, and are not entitled to probative weight.”