Expert Opinion Tossed in Motorcycle Liability Suit for 20-Month Erection
An expert opinion of only general causation violates the California Evidence Code, a state appeals court has ruled, upholding the trial court's decision to strike the expert witness testimony and grant motions for nonsuit.
In Wolf v. BMW North America, the plaintiff, Henry Wolf, had allegedly suffered "a severe case of priapism" (a persistent erection) after riding his BMW motorcycle equipped with a CorbinPacific seat for more than four hours on the same day. Wolf alleged the injury was due to vibrations from his motorcycle and its seat.
Wolf had been riding motorcycles for about 35 years, and had been commuting to work on his 1993 BMW K1100RS for about six months when he had two longer than usual rides the same day due to heavy traffic, riding two hours in the morning and 2-1/2 hours in the evening. The morning after his ride, Wolf awoke with an erection. Two days later, he still had the erection and went to an emergency room. The attending physician noted that Wolf had experienced erections lasting for extended periods, but they always "resolved spontaneously" after 7-8 hours. The physician also noted that wolf had a "long motorcycle ride on saturday (also vigorous sex on saturday)[.]" The diagnosis was for priapism, "etiology uncertain."
A week after his emergency room visit, Wolf saw Dr. Jack W. McAninch, a urologist at UCSF, who testified at trial that he believed Wolf suffered from high flow priapism. Dr. McAninch opined that Wolf's condition was caused by perineal trauma experienced during the motorcycle ride, although he admitted Wolf could have had a priapism even if he had not taken the motorcycle ride and that sitting on any type of seat could have caused Wolf's injury.
The court discounted Dr. McAninch's opinion because he was a urologist, unqualified to specify the way in which four hours of vibration would cause an injury resulting in priapism.
Wolf's neurology expert witness, Dr. Rutchik, had expertise in "upper extremity injuries caused by vibration in the workplace." In his video deposition, Dr. Rutchick stated that he had never treated a patient with priapism, had not evaluated the seat and had no opinion regarding its design or ergonomics.
Dr. Rutchik had not found any instance the medical literature where priapism was caused by vibration or motorcycle riding, although he did note reports on vibration injury to the feet and legs and two Japanese studies that reported an increased incidence of erectile dysfunction among motorcyclists. He concluded that exposure to vibrations could possibly damage neural tissue and cause the injury, but he stated that he was not rendering any specific opinion about Wolf or Wolf's condition.
BMW did have a service manual bulletin on the K1100LT noting complaints "of an uncomfortable level of vibration in the handlebars, seat and foot rest area." The service manual explained adjustments to be made to reduce the vibration. BMW admitted at trial that rubber motor mounts were not used, although other motorcycles commonly used them at the time, and BWM subsequently used them on the K1200 design.
Regardless of the motorcycle's known vibration issues, the trial court found that Dr. Rutchik offered no opinion as to the "duration of the exposure", nor to the "… latency period between exposure and symptoms", nor to "… how such vibration damage would cause priapism." The trial court found that "… Dr. Rutchik's opinion on general causation violates Evidence Code [section] 801 in that it is speculative and lacking in foundation. It is stricken."
Without Dr. Rutchik's testimony, Wolf had no evidence of causation, and even with it, he had no evidence of specific causation, the trial court said. Therefore, it granted the motions for nonsuit.
The California appeals court found that Wolf's opening appellate brief contained "no intelligible argument" and that the trial court correctly granted a nonsuit on the negligence and product liability claims. Wolf was ordered to pay the costs of the appeal.