Expert Witness Testimony: The Difference Between Testing Scientific Principles and Determining Cause
. . . to establish certain scientific principles: (1) to determine whether or not the propane hose can deteriorate sufficiently to leak when in contact with the grease tray during grill operation; (2) to determine if propane leaking from the deteriorated hose can be ignited by the operating burner; (3) to determine if a propane hose fire in the cabinet can be sustained after the burner controls are turned off; (4) to determine if a propane hose fire in the cabinet is readily detectable from outside the grill with the grill lid open and the cabinet door closed; (5) to document the operating characteristics of the grill’s propane distributing system; (6) to determine the consumption rate of the propane hose as a result of the ignited leak.
Bicknese also performed a subsequent round of testing, after which he reported that “the second test continued to support his theory that the fire was the result of the deterioration of the rubber propane hose caused by contact with the heated grease tray.”
Failure to warn claims are commonplace in products liability litigation. In an era of increasing frivolity, plaintiffs often attempt to expand the extent to which a manufacturer must warn of potential injury. Recently, with a new law suit, a North Dakota woman is testing the outer limits of a manufacturer’s duty to warn after severing her fingers in a commercial-grade meat grinder.
After recalling more than 11 million dangerous cribs over the last three years, the U.S. Consumer Product Safety Commission (“CPSC“) recently approved, effective June 2011, new mandatory safety standards for baby cribs and issued a ban on the manufacture and sale of cribs with drop-down sides. Childcare facilities and hotels have 24 months from the publication of the rule to institute compliant cribs into their facilities. Reports of at least 32 infant strangulation and suffocation deaths since 2000 associated with drop-side cribs prompted the CPSC’s decision.
At the time of her injury in 2004, the plaintiff was working as a physical therapist in Buffalo, New York. She reportedly was performing shoulder stretches and had one hand placed on top of a leg extension machine. As she stretched back with her shoulder and arm, the 500-pound machine fell on her, breaking two vertebrae and compressing her spinal cord.
The plaintiff alleged in her suit that Cybex sold a defectively designed, unstable product, and that it failed to provide adequate warnings and instructions in that it issued conflicting instructions regarding the machine’s installation and anchoring requirements. The jury also reportedly concluded that Cybex failed to provide notice or warning of the tip-over hazard after having received notice of other injuries on similar Cybex machines.
Cybex plans to appeal the recent verdict, which the Boston Herald reports will, if it stands, likely bankrupt the small company. It cites to a recent report of an analyst who concluded that Cybex’s earnings would not cover its operating expenses and the estimated $45 million it would need to borrow to cover the judgment. Cybex Chairman and CEO reportedly said of the outcome: “We strongly believe that Cybex was not negligent and was in no way responsible for this tragic accident. We will vigorously pursue all avenues to attain a reversal of this verdict.” Shares of the company’s stock plummeted 37 percent after its announcement of the verdict.
Apparently not. In fact, there are so many people who have had this happen that some smart plaintiff’s lawyer filed a putative class action for them, perhaps hoping to get new $2,000 TVs for everyone. Or at least new $1.99 wrist straps.
On the implied warranty of merchantability, the court cited the lack of evidence that would indicate what the intended purpose of the strap was. One might plausibly assume, as plaintiff did, that the strap was intended to prevent a controller, inadvertently released by the player during vigorous activity, from hurling towards the player’s television (or towards another player) and causing damage. But equally, one might assume that the strap was simply intended to keep an inadvertently released controller in the vicinity of the player so that it could be easily retrieved and was was never intended to withstand the forces of high-speed controller release.
Honestly, we really hate siding with plaintiffs, especially when they’re running around filing lawsuits based on their own lack of common sense (“If I release this controller in the process of it swinging toward my TV . . . .). But to surmise that the wrist strap is designed to do anything but keep the controller strapped to your wrist is a bit of a stretch.
In the 1960s and 1970s, the Ford Pinto was dubbed “the barbecue that seats four.” The gas tank, located in an unfortunate location in the back of the car, had an even more unfortunate habit of rupturing, and exploding, if the car was rear ended.