The Perils of Expert Depositions and The Duration Thereof

Sometimes, Plaintiffs’ attorneys complain about the amount of time defense counsel spend deposing their retained liability expert. Of course they do.

Accordingly, we here at Abnormal Use offer these suggestions on how they can ensure that the depositions do not require so much time to conduct.

Produce a report. Obviously, in federal court, expert reports are required.  However, in some state courts, reports are not mandated.  Accordingly, defense counsel may appear at the deposition without a detailed knowledge of the nature and basis of the expert’s opinion.  If defense counsel must spend the first portion of the deposition ascertaining the expert’s opinions, and then later exploring them in detail, then the process is slowed.  If the defense lawyer knows beforehand what the opinions are or may be, then he or she can better prepare and conduct the exam more efficiently.  However, without a report, the defense counsel must both identify and confirm the expert’s opinion before establishing the basis for said opinions.

Produce the expert’s file material well in advance of the deposition.  If the expert appears at the deposition with a host of unproduced file materials, then a portion of the exam must be dedicated to identifying and explaining the purpose of those materials.  Even production of the expert’s file before the deposition may not save time.  For example, if the Plaintiffs’ attorney emails file materials to defense counsel at 5:00 PM the day before the deposition, then one cannot expect that much time will be saved at the deposition itself.

Show up on time to the deposition. Sure, we as lawyers are sometimes informal at depositions, and most of the time, a collegiality permeates the deposition room despite the antagonistic nature of the litigation process.  However, if the Plaintiffs’ lawyer appears 15 minutes late for the deposition, it makes complaints about the length of the deposition somewhat disingenuous.

Determine how to address the lunch break. If time is a concern, then perhaps a brief lunch period can be scheduled or food can be ordered out and eaten as the deposition progresses.  Obviously, there must be sufficient time for the court reporter to take a break and eat his or her own lunch, but if a 30 minute lunch break is suggested, and Plaintiffs’ counsel requests an hour instead, then complaints of the length of the deposition may be inappropriate.

Finally, prepare the expert for the deposition process. A number of experts are in the business of being experts, and they enjoy sparring with attorneys and avoiding answering even the most direct questions.  Most defense counsel will be undeterred by such tactics and continue to ask questions to confirm and secure the full basis of the stated opinions.  However, the types of games that some experts play in attempting to avoid questions can only prolong the process.  Defense counsel is entitled to know both the opinion and their basis, and if the testifying expert wishes to delay offering that information at the deposition, then it will only take longer to procure that information from the expert during the exam.

Make certain that the expert has a mastery of his or her own file. If an expert is only prepared to spout off his or her own opinions, but cannot point to the specific documents or evidence supporting that opinion, then the deposition will last longer than expected.  The expert has known for days, possibly weeks, that he or she is to be deposed, and answering straightforward questions such as “what is the basis of that opinion?” with something along the lines of “I read that in some other depositions” or “that is in one of the books upon which I relied” are not sufficient answers.

The Perils of the DSM-V?

Quite some time ago, friend of the blog Walter Olson of Overlawered opined on the proposed revisions to the DSM-IV, soon to be the DSM-5, which will apparently include some brand new mental disorders therein.  (He also tweeted a link to a related news report). The DSM, of course, is the The Diagnostic and Statistical Manual of Mental Disorders, a thick volume published by the American Psychiatric Association which purports to list (and include the elements of) a host of mental disorders.  Daily, it is used by practitioners – from psychiatrists to primary care physicians – to diagnose particular mental conditions, from potential tobacco addiction to post traumatic stress disorder. It’s often called “the Bible of the profession.” Predictably, Plaintiffs’ experts often use the mighty tome – haphazardly, more likely than not – to advance their clients’ cases.

Olson linked to a piece he wrote for the Cato Institute, in which he speculates that the liberalization of standards for preexisting mental disorders and the addition of new disorders – such as Internet Addiction Disorder and Mild Neurocognitive Disorder - will result in a flurry of new claims for benefits, discrimination, and such.  Certainly, plaintiffs’ retained testifying experts – and local treating physicians and mental health providers advocating for their patients in personal injury lawsuits – may seize upon these new diagnoses.  However, many of these experts and plaintiff friendly treaters do not actually employ the formal DSM criteria when making these diagnoses in the first place.  Whatever you say about the merits or lack thereof of the DSM-IV, many plaintiffs’ experts and treaters shoot from the hip when making these mental diagnoses.  When they see a patient claiming psychological symptoms following a traumatic incident, they immediately leap to a PTSD diagnosis without employing the specific multi-axial diagnosis process.  Further, when called upon to analyze the factors set forth in Axis IV, which requires an analysis of  - or at the every least, knowledge and consideration of – other environmental or psychosocial factors contributing to the patient’s condition, these providers almost never conduct any independent evaluation.

The DSM-IV-TR provides that the mental health professional consider a number of factors when performing a multi-axial diagnosis, including such things as the following:

  • Source of psychosocial and environmental problems interview with patient and parents?
  • Positive stressors
  • Problems with primary support group?
    • Death of a family member
    • Health problems in the family
    • Disruption of family by separation
    • Divorce or estrangement
    • Removal from the home
  • Problems related to social environment
    • Death or loss of a friend
    • Living alone
    • Difficulty with acculturation
    • Adjustment to life transition (such as retirement)
    • Adjustment to life-cycle transition
  • Occupational Problems?
    • Unemployment
    • Threat of job loss
    • Stressful work schedule
    • Difficult work conditions
    • Job dissatisfaction
    • Job Change
    • Discord with boss or co-workers?
  • Economic Problems?
    • Extreme poverty
    • Inadequate finances
    • Insufficient welfare support
  • Housing Problems?
    • Homelessness
    • Inadequate housing
    • Unsafe neighborhood
    • Discord with neighbors or landlord
  • Problems with access to health care services?
  • Problems with primary support group
  • Problems related to interaction with legal system/crime
    • Litigation
    • Arrest or incarceration or victim of crime?
  • Other psychosocial and environmental problems?

Yet, in the rush to reach a diagnosis, the professional often fails to consider many of these as alternatives to the event being litigation.  (Also neglected is secondary gain syndrome, an ailment which Plaintiff’s retained testifying experts never seem to diagnose.). Thus, we can always rely on plaintiff’s testifying experts to fail to do what the DSM instructs.  This can be helpful when cross examining or deposing these experts before trial.  Even plaintiff friendly treaters, in their attempts to get one patient out the door so the next one can come in, do not traditionally take all of the steps suggested by the DSM-IV or analyze the factors of a full multi-axial diagnosis. So, as with any list, people skip steps, particularly when they feel they can. In this setting, defense counsel can sometimes actually benefit from the extraordinary detail of the publication by highlighting all of the portions of the guidelines that the expert failed to consider or make a part of his or her analysis.

So, even when the DSM-5 arrives, we can still count on these individuals to take short cuts. (Although we’re a bit concerned about this “Internet Addiction Disorder.”  Might we here have that?).

(Hat tip also to these two tweets from Jay Hornack a/k/a Panic Street Lawyer: here and here).

Deposing Testifying Experts on Past Exclusions Under Daubert and Such

There’s nothing quite like deposing an opponent’s retained testifying liability expert.  They are typically skilled and savvy deponents who know many of the tricks of the trade.  They make much of their living testifying in court. Past deposition transcripts, if they can be located, yield a wealth of information about the expert’s background, methodology, and, of course, their pet peeves. Plus, these experts usually know of the Daubert case and what must be done to avoid being excluded as an expert in a case.  Some experts even advertise on their websites that they have never been excluded by the Daubert case.

Why would they do that?

It seems a curious statement to make, particularly if the expert has been around long enough to have been challenged on multiple occasions in litigation across the country.  Diligent counsel will always locate and review an opponent’s expert’s website, if one exists.  If the expert maintains that he or she has never been excluded on such grounds, defense counsel would naturally ask if that fact were still true. If so, the required follow up question becomes:  “If you’ve not been excluded on Daubert grounds, on what grounds have you been excluded?”

Recently, we deposed an expert who made such a representation on his website.  However, after spending less than five minutes on Westlaw, we discovered that he had been excluded in not one but three reported decisions.  Note that these were decisions that were on Westlaw, and these findings may not have included unreported exclusions or those which occurred at the trial court level that were never appealed.  One such exclusion came from the very first case in which the expert had offered opinions.  At the deposition, we naturally confronted the expert with these three opinions and he claimed not to know of them.  How is that?

Sure, two of the opinions were more than a decade old, but the third was from 2011 (and in that case, the trial court had excluded the expert, later granted a motion for new trial based on the belief that the exclusion was improper, and ultimately earned a reversal from the Court of Appeals because the expert’s opinions had been proven to be false by some properly admitted trial testimony).

How could someone not know that?  Well, maybe the expert simply received a call from the lawyer who hired them noting that the case had settled or otherwise resolved, and that lawyer felt it unnecessary to reveal the full story. But how could an expert elect to make that representation on his or her website and then not track whether or not that was true?

We shouldn’t object too much, as it’s always fun to hand an expert a court opinion he or she has never seen before.

Ski Instructor Not Qualified to Testify About Ski Design

Colorado’s Stanley Gale is a lot of things.  A skier with a Level I Alpine certification.  An alumnus of the Alpine Ski Patrol.  An expert qualified in the areas of ski safety and accident reconstruction.  However, in Squires v. Goodwin, No. 10-cv-00309, 2011 WL 5331583 (D. Col. Nov. 7, 2011), a Colorado federal court held that he wasn’t qualified to testify as to the design, manufacture, or risk associated with bi-ski adaptive skiing equipment.  Preposterous, you say?  How can a man with 38-years of experience as a ski patrol officer not qualify him as an expert you ask?  Certainly, the court must be in error.

In Squires, the case arose out of a 2008 ski accident at the Breckenridge Ski Resort in Colorado.  The plaintiff, a 17-year old girl with cerebral palsy and legal blindness, was injured when her ski instructor lost control of the tethers connected to a bi-ski manufactured by Mountain Man, Inc.  After the instructor lost control of the tethers, the plaintiff continued down a ski slope in the bi-ski until it collided with a tree.  The plaintiff filed suit against the instructor and the Breckenridge Outdoor Eduction Center.  Thereafter, she amended her complaint, adding claims for strict products liability, breach of implied warranty of fitness, common law negligence, and breach of express warranty against Mountain Man.  The plaintiff retained Gale as an expert to testify regarding the inherent danger presented with the design of the bi-ski.

Mountain Man moved to strike the opinions of Gale on the grounds that they failed to satisfy the requirements of Rule 702 of the Federal Rules of Evidence or the standards outlined in Daubert.  According to the plaintiff, Gale was qualified to testify about the alleged deficiencies in the bi-ski because he has “extensive knowledge and experience with ski patrol equipment and mountain terrain safety.”  Further, the plaintiff argued Gale’s opinions were based on “sound principles.”  However, these “sound principles” were never articulated.

The Court conceded that Gale may be qualified to testify as an expert in certain fields – but not in the areas of product design, manufacture, and product warnings.  Gale has never been employed by a ski equipment manufacturer and has no formal training in the field.  While experts are granted wide latitude to offer opinions, the Court indicated that these opinions must have some reliable basis.  Despite the apparent lack of ski product design experience, Gale opined that the bi-ski was “inherently unsafe and not designed for powerful forces” because “all of the plastic buckles on the bi-ski seat broke.”  Gale identified no formal methodology as a basis for his opinions.

Gale’s opinions did not cease with his “broken buckle” logic.  He also proposed an alternative design for the bi-ski involving “some sort of braking device which could be controlled by the person strapped to the bi-ski.”  While Gale’s hypothesis sounds intriguing, he offered no specifications for the design, demonstrations of its feasibility, or explanations of how it would be employed by a person with physical impairments.  The Court described his opinions on the alternative design as a “subjective belief that unknown individuals with actual qualifications could ‘come up with something.’”  Apparently, these opinions are not the reliability envisioned by Rule 702.

Knowing the significance of expert testimony in products litigation, we must question the plaintiff’s choice of Gale.  Sure, he is an experienced ski instructor, but couldn’t the plaintiff find someone more linked-in to ski design and manufacture?  Maybe the plaintiff prepped for the Daubert hearing by reviewing the qualification of Mona Lisa Vito (Marisa Tomei) in My Cousin Vinny.  If Vito is qualified to testify in general automotive knowledge because she comes from a family of mechanics, Gale’s skiing experience should qualify him to talk about the design and manufacture of skis right?  After all, with 38 years of experience on the slopes, Gale has seen a lot of skis.  Unfortunately for the plaintiff, the Court was not as impressed as Jim Trotter (Lane Smith) and Judge Chamberlain Haller (Fred Gwynne).

Fortunately for Mountain Man, the Court got this one right.  Gale was not qualified as an expert in product design and the Court granted Mountain Man’s motion for summary judgment as a result.  As for Gale, well he won’t be able to add “ski equipment expert” to his CV.  Maybe he can spend his time away from the trial, designing that braking device.

Burger Time: The burden of proof in Florida food poisoning cases

One would think that food poisoning, especially the serious E coli type, might not be that difficult to establish in litigation.  The plaintiff eats food, winds up shortly thereafter with difficult symptoms, rushes to the hospital for treatment, and to top it off, garners a diagnosis of E coli.  Relatively straightforward, right? Apparently, it’s not so simple in Florida.

In Colson v. Tampa Hotel-VEF IV Operator, Inc., 8:10-CV-9-T-30TBM, 2011 WL 5553840 (M.D. Fla. Nov. 15, 2011), the sole issue before the court on the defendant’s motion for summary judgment was causation.  Could the plaintiff, who claimed she contracted E coli after eating a tainted cheeseburger at a hotel, prove that the cheeseburger was, in fact, the culprit?

The answer: no. According to the Florida federal court, “[i]n food poisoning cases, while a plaintiff may establish causation by either direct or circumstantial evidence, courts have routinely found that a mere showing that a person became sick subsequent to eating food is insufficient.”  Instead, the plaintiff must provide some evidence that the food in question was actually contaminated or tainted, either through evidence of a food recall, evidence that others became sick after eating the same food, or that the food smelled or tasted funny at the time of consumpton.

So what did the Plaintiff argue in this case?  The court summarizes her case as follows:

Here, Plaintiff contends that she has presented sufficient evidence showing that she contracted E coli from consuming Defendants’ cheeseburger. First, she points out that she started to feel ill approximately twenty-two hours after consuming the burger, which is approximately within the accepted one to nine day incubation period for E coli. Second, Colson’s expert witness testified in his deposition that the cheeseburger was more likely than not the source from which Plaintiff contracted E coli. Asked to explain the basis of his opinion, Dr. Delaportas stated that since Colson “had a cheeseburger in the time frame of incubation, and that is more often the implicating food in these cases than not…I believe it’s more likely than not it was that cheeseburger. I cannot rule out other sources.” (Depo. Of Delaportes, 47-48). Based on this evidence, Plaintiff contends that she has presented sufficient evidence of causation in order to survive a motion for summary judgment.

The court didn’t buy it.

The plaintiff’s expert certainly didn’t help her out very much, testifying that while he believed that the cheeseburger caused her illness, he could not rule out other causes.  Thanks, doc.

In the end, without further proof of a causal link between the cheeseburger and the plaintiff’s E coli, the defendant’s motion for summary judgment was granted.

Who Says Numbers Don’t Lie?

On occasion, we here at Abnormal Use write about evidentiary issues, usually pertaining to the intersection of law and science. It is at this intersection that we find conflict, sometimes severe, regarding the standards for admissibility of expert testimony. This area of the law is usually a fertile ground for discussion, and the facts are generally pretty intriguing. And so it goes with today’s post. Let me preach on it.

Recently, friend of the blog Steve Mirsky (of Scientific American fame) alerted us a piece in The Guardian reporting on a court that had refused to allow an expert to testify in the field of mathematics. This piqued our interest, so we decided to look into the matter a little further.

The specific case that Mirsky was referring to was a murder case from England. The prosecution’s theory was that the crime was committed by a person wearing a specific type of athletic shoe whose sole had been worn down in a particular way, leaving a particular type of tread pattern behind. It was alleged that the defendant, coincidentally, had shoes whose sole matched the particular tread pattern. We understand from our friends who practice criminal defense that the legal term for such information is “a really bad fact.”

The prosecution wanted to take the really bad fact a step further. They wanted to call a statistician who would apply a mathematical proposition known as the Bayes’ theorem to the facts of the case. Basically, the Bayes’ theorem is a mathematical expression of common sense. It addresses the probability that a given event could occur given the concurrence of certain circumstantial facts. For example, let’s say that a hit-and-run fatality occurred in South Carolina and all that was known about the suspect vehicle is that it was a gray sports car. As a matter of mathematical theory, it is possible to determine the probability that the suspect car was – say – a Maserati (or any other type of car). Naturally, the more specific factual input that is provided, the less probable it is that an event consisting of all that input could occur.

And that’s probably why the English judge had such a problem with admitting expert testimony about Bayes’ theorem with regard to a criminal case. From the judge’s perspective, the statistician would testify about how improbable it would be that a defendant would have just the right pair of shoes, with just the right sole pattern, as compared to police observations of the murder’s physical evidence. Our common sense would tell us that it’s just too much of a coincidence that the defendant would have so much unusual information in common with the suspect. And that therefore, the defendant must be guilty.

But not so fast. Before we throw the book at someone based on coincidence, perhaps we should ask how many people in the relevant sample (here, England) had the same type of shoes as the suspect? If the answer to that question were 1, then the correspondence of circumstantial evidence about the defendant as compared with the suspect would become more than just a convenient coincidence. However, the further the number moves away from 1, the less relevant the statistical evidence would seem to become. In the case at hand, the number seemed to be in the order of several hundred thousand pairs of the same types of shoes had been sold around England over 10 years. Consequently, it is possible that there could have been tens, hundreds, maybe thousands of the exact same types of shoes with consistent wear patterns.

Let’s be honest about ourselves for a moment. Human nature is susceptible to drawing firm conclusions about truth and innocence based upon the coincidence of circumstances that we believe to be highly improbable based on our common sense. This is especially true when what we believe to be common sense is backed up by “science.” When it comes to statistical evidence, without knowing the relevant sample size, we really can’t evaluate in a reliable fashion how probable or improbable the circumstances are of a given event. And without having that confidence in the statistical testimony to be offered, believing that it is likely to lead to unfair extrapolations of truth and innocence, it is better to simply exclude the testimony altogether. And while we’re being real, if a criminal prosecution comes down to specious statistical evidence, the case was never that strong to begin with.

The analysis of this case reminds us of the famous quip: “There are three kinds of lies: lies; damned lies; and statistics.” Criminal convictions must be based on sterner stuff. There may be room for statistical evidence, and there often is. But statistical evidence must have the same indicia of reliability as other types of expert testimony; otherwise, there is a 100 percent chance that it must be excluded.

South Carolina Court of Appeals Reverses Products Liability Verdict Against Ford Motor Company

There is no question that South Carolina’s appellate courts are taking a harder look at expert testimony in products liability actions.  They’re looking not just at who’s qualified to be an expert, Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010), but also, the subject matter experts may address, Jackson v. Bermuda Sands, Inc., 677 S.E.2d 612 (S.C. Ct. App. 2009). Just last week, the court of appeals issued an opinion in 5 Star, Inc. v. Ford Motor Company, No. 4862 (S.C. Ct. App. Aug. 10, 2011), which addresses when expert testimony may be required.

We here at Abnormal Use have completely plagiarized the court’s account of underlying facts for your convenience. Here you go: “5 Star is a lawn maintenance and pressure washing company owned by Stan Shelby. In February of 2005, 5 Star bought a 1996 Ford F-250 pickup truck with 227,000 miles for $1,500.00. On September 24, 2005, Shelby parked the truck for the weekend in 5 Star’s North Charleston warehouse, which also housed tractors, trailers, lawn mowers, and other equipment related to the business. When Shelby returned two days later he discovered that a fire had occurred. The truck was destroyed, and the building and several other pieces of equipment were severely damaged. There were no personal injuries. Before suit was filed and before Ford was given an opportunity to inspect the truck, Shelby had the truck towed from his property and crushed.”

Here’s a few additional facts taken from the opinion. Apparently, “the most significant damage to the building was directly above the truck’s engine compartment, which indicated  . . . that the engine compartment was the area of origin of the fire.” Furthermore, “the only thing that will produce heat” in the engine compartment when the vehicle is not being operated is the speed control deactivation switch. “[This] switch serves as a mechanism to deactivate the cruise control when the driver presses the brake pedal. The switch is wired into the brake light circuit, which, for safety reasons, must remain energized at all times. Keeping this circuit energized allows the brake lights to be illuminated by pressing the brake pedal even when the vehicle is turned off. The switch is ‘redundant,’ meaning it serves as a back-up in case the primary deactivation switch malfunctions.”

Due to the constant flow of electrical current, the switch can get hot. Apparently, a fuse is connected to the switch, which is tripped at 15 amps of electrical current. This is designed to prevent the switch from overheating. However, the switch was only rated to handle 2 amps of electrical current. This means there’s a range of 13 amps of current above the switch’s rating but below the fuse’s trigger that can course through the switch uninterrupted. “The allegedly defective quality of the switch is that it allows brake fluid, which is flammable, to remain in dangerous proximity to the energized electrical circuit [which, as we’ve just discussed, can get hot], separated only by a thin membrane.” Oh, and by the way, “Ford concede[d] the switch was defective.”

The case was tried in September 2008. The jury returned a verdict of $41,000.00 in actual damages for 5 Star. And everyone lived happily ever after — until 10 days later when the appeal was filed.

On appeal, the court focused on whether 5 Star presented any evidence that Ford had breached its duty to exercise reasonable care in designing the switch / fuse system, which is necessary in products cases based on design defects. The court held that “5 Star not only failed to present any evidence that Ford’s conduct in designing the switch was negligent, 5 Star failed to present any evidence of Ford’s conduct whatsoever.” The court further held that a directed verdict should have been entered for the Ford Motor Company.

Judgment reversed.

In a footnote, the court stated that 5 Star did not brings claims against Ford under strict liability or breach of warranty. We don’t want to play Tuesday morning quarterback, but including those claims probably would have been game-changers.

There’s one thing that prompts some curiosity. The court held that “[b]ecause 5 Star failed to present any expert testimony on the design of the speed control deactivation switch and whether the design was negligent in 1996, the trial court erred in not directing a verdict in favor of Ford.” But under the facts of this case, was expert testimony really necessary? If 5 Star’s theory was that Ford should have used a different switch, or a different fuse, or should not have routed a constant electrical current through the switch, certainly, expert testimony on those matters would be appropriate. But we’re not convinced that 5 Star’s theory was that complicated. Based on our reading of the facts, 5 Star’s theory seems to have been very simple: Ford designed a system that allowed brake fluid to be in close proximity to a heat source; brake fluid is flammable; the combination of heat and fuel caused a fire that destroyed 5 Star’s truck. If this was Plaintiff’s theory, again, was expert testimony really necessary?

In a different, but comparable context, the court of appeals has previously held that reasonable people of ordinary prudence should know that ladders conduct electricity, Anderson v. Green Bull, Inc., 471 S.E.2d 708 (S.C. Ct. App. 1996), that using golf carts at night is dangerous, Moore v. Barony House Restaurant, LLC, 674 S.E.2d 500 (S.C. Ct. App. 2009), and that using watercraft near swimmers can endanger the swimmers’ lives, Dema v. Shore Enters., Inc., 435 S.E.2d 875 (S.C. Ct. App. 1993). If people are assumed by law to have these types of knowledge, then wouldn’t the law also assume that the average person of ordinary prudence also knows that exposing flammable liquids to heat can cause fire? If the law would impose that knowledge on natural persons, then wouldn’t it also impose that knowledge on corporate persons? And if the matter were truly within the ambit of common sense, then why would expert testimony be necessary — even admissible — on the matter anyway?

Don’t get us wrong. We appreciate the court’s invigorated efforts to rein in expert testimony, which is too often manipulated and abused. And we also appreciate Ford Motor Company’s nearly single-handed efforts to finance the litigation that is clarifying the law of expert testimony in South Carolina. We’re just watching and waiting to see if this decision will get taken up to the Supremes.

Dear expert witnesses: Please perform testing prior to drafting your report. Thanks. Sincerely, The Plaintiffs.

To be a good expert witness, a person should be extremely knowledgeable about the subject upon which he or she is opining.  The expert should preferably have a nice balance of practical and academic experience in his or her field, be good looking, well spoken, and able to articulate complex theories into easy to understand, layman’s terms. Oh, and one more thing.  The expert should probably wait until after he or she conducts testing on the product at issue in a case to draft his or her expert report.

In Cannioto v. Louisville Ladder, No. 8:09-CV-1892-T-30TBM, 2011 WL 2014260 (M.D. Fla. May 20, 2011), the plaintiff Robert Cannioto was allegedly injured when the 24-foot ladder he was standing on performing roofing work failed, causing him to plummet 16 to 18 feet to the ground.  The ladder was manufactured by LL. Cannioto and Home Depot, and Mr. Cannioto and his wife Bonnie Cannioto sued these two companies on theories of (1) strict liability against Louisville Ladder; (2) negligence of Louisville Ladder; (3) strict liability against Home Depot; (4) negligence of Home Depot; and (5) loss of consortium against Louisville Ladder.  The defendants filed a motion to exclude the testimony of the plaintiffs’ expert, Dr. Charles Benedict, and for summary judgment.

The plaintiffs hired Dr. Bendedict to render an opinion for them about the design and condition of the ladder at issue in the case.  Obviously, the plaintiffs wanted him to say there was something wrong with the ladder.  So, he did, writing a report in which he opined that the ladder was defectively designed.

Unfortunately, Dr. Benedict couldn’t quite get his tests, conducted after he wrote the report, to match his “findings” that the ladder was defectively designed:

In an attempt to prove his theory that the ladder failed as a result of the effect of torsional forces on a defectively designed foot, Benedict had one of his engineers set up a 24–foot extension ladder . . . in a manner similar to the one used by Plaintiff. He then had the engineer stand on the tenth rung of the fly or extended section of the ladder and violently jerk the left rail for almost 10 minutes in an effort to get the ladder to fail. The engineer also set the ladder on uneven ground and placed large weights near one of the feet in an effort to get the rail to fracture. Benedict’s assistants were unable to get the ladder rail to bend or break during the tests.

Don’t you hate when that happens?  So, the expert changed his theory from design defect to manufacturing defect.  In the middle of his deposition.  Without conducting any testing at all on the theory.

During his deposition, Benedict offered a new theory, one about a manufacturing defect rather than a design defect, as to why the subject ladder failed. He testified that the rungs were not properly or adequately attached to the rail and that the rung pulled out. This theory was not in Benedict’s expert report and Benedict admitted that he had not performed any testing to support this theory.
Not surprisingly, defense counsel argued at the hearing that Dr. Benedict should be excluded from testifying about the manufacturing defect because that particular theory had not been included in his expert report as required by Rule 26(a)(2)(B), FRCP.  Once the expert was excluded by the court, the plaintiffs could not support their theory of the case, and the defendants were granted summary judgment.

Expert Used to Deny Summary Judgment in Kitchen Fire

I think all lawyers are nominal conspiracy theorists. What else does the law school environment teach other than not to trust anyone at any time, and that most people – probably all – people are out to get you? At the risk of being untoward, but last month’s Godwin v. Electrolux Home Products, Inc., No. 2:09-0106, 2011 WL 1357691 (M.D. Tenn. Apr. 11, 2011) [PDF] makes you wonder what a plaintiff (or his subrogee) can pull out of his hat.

The crux of the case involves that perilous issue: expert testimony. The court, in assessing the admissibility of such testimony, ruled that the Plaintiff’s expert could testify as to the source of a fire based on burn patterns, and rightly so, as the expert was qualified and burn patterns are a reliable source of data to use in an house fire. Thus, Plaintiff’s expert’s testimony precluded summary judgment in favor of the defendant. But something seemed a little off in the facts.

Frances Godwin’s home is destroyed by a fire. There seems to be no dispute that the fire originated at the stove. However, the stories of the reason for the fire diverge. I assume that Godwin’s insurer brought the action as a subrogee, and that’s what makes this case particularly interesting. If Godwin burned down the house because of her own negligence, then the insurer is out the money paid for the claim. But if there is some chance that a product defect contributed to the fire, then the insurer can spread the misery around a bit. The plaintiff put forth a theory that the stove in the home was defective, but the defendant put forward these facts:

A dispute arises as to the timing of the fire alarm at Plaintiff’s residence. According to Plaintiff, the fire alarm occurred at approximately 5:35 p.m., to which two different fire departments responded. (Docket Entry Number 49, Plaintiff’s Responses to Defendant’s Statement of Material Facts at ¶ 2). The fire department report for the Cumberland County Fire Department reflects that the fire alarm sounded at 7:11 p.m., Jay Schienost, Plaintiff’s daughter, places the fire starting between 5:30 and 5:45 p.m.

Defendant cites the testimony of Jimmy Barnes, a volunteer firefighter for the Cumberland County Fire Department, who responded to the fire. Plaintiff allegedly stated that she had cooked dinner on the stove a couple of hours before the fire and had left some pots and pans on the stove top. Barnes testified that there were pots and pans on the top of the range, and that one of the stove’s top knobs had been left in the “on” position. The Cumberland County Fire Department concluded that the fire “started from something left unattended on the range.”

This seems like a pretty clear case of homeowner negligence. In a cunning move, the insurer hired a fire investigator, who attributed the fire to a defect in the Electrolux stove. (There was some testimony about the self-cleaning mechanism not working properly prior to the fire.) The plaintiff hired a mechanical engineer to opine on the cause of the fire, who stated that the fire was not caused by cooking. Summary judgment denied. In so many other cases, we see ill-qualified experts who cannot withstand Daubert. In this case, careful expert selection helped to create an issue fact resolvable only be a jury, and probably helped Godwin’s insurer recoup some of the loss on the home. Congratulations to Godwin’s insurer in using a slick litigation strategy to get past summary judgment. Whether or not the fire was caused by Godwin’s negligence, perhaps the insurer won’t bear the entire loss. Creation of fact seems to be a fine form of risk spreading.

South Carolina Supreme Court Re-Issues Opinion in which it Reversed $18 Million Products Liability Verdict

We here at Abnormal Use previously reported on that on March 15, 2010 the South Carolina Supreme Court reversed an $18 million jury verdict against Ford Motor Company, finding that the trial court erred in admitting the testimony of two of the plaintiffs’ experts and admitting evidence of prior sudden acceleration accidents. Watson v. Ford Motor Co., No. 26786, — S.E.2d —, 2010 WL 916109 (S.C. Mar. 15, 2010). Yesterday, the South Carolina Supreme Court “reissued” this opinion, substituting the most recent opinion in the place of the one cited above, after considering Plaintiffs’ and Ford’s motions to clarify and Plaintiffs’ motion for rehearing, all of which were filed after the original opinion. Watson v. Ford Motor Co., No. 26786 (S.C. Sept. 13, 2010).

The difference between the two opinions — the March 15, 2010 opinion and the September 13, 2010 opinion — is that the Court considered an additional issue on appeal presented by Ford. After the jury returned a verdict in favor of Plaintiffs at the trial of this matter, Ford filed post-trial motions, including one for judgment notwithstanding the verdict (“JNOV”). The trial court denied all of Ford’s post-trial motions and on then appeal, it appears that the Court did not consider whether the trial court erred in denying Ford’s JNOV motion. On Plaintiffs’ and Ford’s motions for reconsideration, the South Carolina Supreme Court considered this issue and found that the trial court did err in denying Ford’s JNOV motion.

The September 13, 2010 opinion included its previous analysis of all the issues in the March 15, 2010 opinion that found the trial court erred in qualifying Bill Williams as an expert on cruise control, qualifying Dr. Anderson as an expert on alternative designs, finding that Dr. Anderson’s theory regarding EMI as the cause of the sudden acceleration met the reliability requirements, and admitting evidence of similar incidents involving sudden acceleration in Explorers. In addition to the above, in the re-issued opinion, the Court found that because Plaintiffs’ experts did not present admissible evidence, they “failed to present a case for products liability” because there was no evidence that the cruise control system was defective or unreasonably dangerous. Further, the Court found that Plaintiffs “failed, as a matter of law, to prove an alternative feasible design with respect to the vehicle’s cruise control system” and were entitled to judgment notwithstanding the verdict. The South Carolina Supreme Court therefore found that as a result of all four of the trial court errors, it must reverse the jury’s verdict and enter judgment in favor of Ford.

Justice Costa M. Pleicones, who concurred in a separate opinion in the March 15, 2010 decision, now concurs in part and dissents in part in a separate opinion. Justice Pleicones concurred, as before, with the points made by the majority, merely suggesting that he would have reached the same result by a different route. However, in the September 13, 2010 opinion, Justice Pleicones dissents with the new part of the opinion that finds that Ford was entitled to JNOV, stating that there was evidence in the record to support the trial court’s denial of Ford’s JNOV motion. That evidence consisted of a colloquy between Dr. Anderson and Ford’s counsel in which Dr. Anderson opined that to a reasonable degree of engineering certainty that electrical interference was the cause of the sudden acceleration. Justice Pleicones stated that he would have reversed and remanded.

Finally, as noted by Brain Comer of South Carolina Products Liability Law Blog yesterday, the Court added an additional footnote in its discussion of whether the court erred in admitting Dr. Anderson’s testimony as to both an alternative feasible design and his EMI theory. This footnote cited to the recent opinion in which the Supreme Court adopted the risk-utility test as the exclusive test in products liability design cases — which we discussed here.

What, then, is the significance of this “re-issued” opinion? The prior opinion, as is this one, was instructive on the duties of the trial court as a gatekeeper of the admission of evidence and vividly illustrated how critically important competent expert testimony is to the prosecution of products liability cases. What the most recent opinion adds is that when the appellate court properly strips improper expert testimony from the case, they stand ready to not only remand for a new trial but also outright reverse a trial court’s decision and dismiss it.