Expert Witness Exclusion Only When Opining Well Outside Field
A wide margin must exist between the specific expertise of expert witnesses and the subject matter on which they opine in order to exclude their opinions under Daubert, the US District Court for the Western District of Pennsylvania has ruled.
In McKenzie v. Dematic Corp et al, US Dist. Court W.D. Pa., Feb 22, 2016, McKenzie, the plaintiff, was injured when she reached her hand inside an empty-carton conveyor (trash conveyor) to remove a piece of plastic from a roller while working at a CVS/Caremark Corp. distribution facility as a split-case picker. McKenzie claimed defective design, failure to warn, negligence, and for injuries sustained while working for CVS.
The plaintiff's mechanical engineering expert witness, Professor Roelof H. deVries, provided a report alleging that a design defect in the trash conveyor manufactured by defendant Dematic caused the plaintiff's injuries, and that the conveyor was not an "integral" part of the CVS warehouse building. (Claims are barred by the Pennsylvania Statute of Repose related to integral parts of real property.)
The defendants noted that Professor deVries's background was primarily in agricultural engineering and that he was not a structural engineer or an architect, never having constructed or designed a distribution warehouse, nor had he ever seen a conveyor of the type in this case installed or removed from a building. The defendants moved to exclude his opinion that the conveyor was not integral to the building, arguing that, given his background, he had "… stepped well outside his field of expertise".
The supreme court disagreed. The cases the defendants cited to support their argument were instances where the margin between the specific expertise of the proffered expert and the subject matter were great (eg: an electrical engineer testifying about a theory of liability that “hinged on habituation"). In contrast, Professor deVries had both training and work experience related to the design of conveyor systems.
Professor deVries had made eight assessments in his determination that the trash conveyor was not integral to the building, including assessments the defendants argued were "predicate opinions": (1) the trash conveyor could be installed/removed without modifying the CVS facility; (2) it was previously moved from one location to another; (3) it was not essential to the split-case picking operation; and (4) it did not add value to the CVS facility.
While the court found that Professor deVries was qualified to render an opinion as to whether or not the trash conveyor was integral to the facility and that he could testify as to the first two assessments, the court agreed with the defendants regarding Professor deVries' assessments of the necessity and of the value of the trash conveyor.
Professor deVries assessed that the trash conveyor was neither necessary or of value to the facility because it had operated in the past without a trash conveyor and the conveyor would be unnecessary if the facility went to full-case picking rather than split-case picking.
The supreme court found that assessment unreliable because it lacked any discernible methodology and failed to satisfy the "touchstone" of the reliability assessment, because his "common sense" assessment would fail to assist the trier of fact. However, the other six assessments were allowed. Those assessments, the court found, were sufficient for Professor deVries to opine generally as to whether the trash conveyor was integral to the facility.
The defendants also challenged Professor deVries' causation opinion in which he concluded that the defendants "… failure to guard [the] nip-point constituted a defective design. If the nip-point was guarded as it should have been, no one would have been able to come into contact with the nip-point, thereby avoiding the injury."
The defendants challenged Professor deVries' opinion in part as he relied on the plaintiff's deposition in which she testified that she had reached for a piece of plastic that was dangling from a roller of the trash conveyor. The defendants argued that permitting Professor deVries to testify that the plastic was dangling would constitute "blind acceptance of plaintiff's testimony" and that it would be "… improperly framed as expert opinion."
The court disagreed. The dangling plastic was a disputed fact. Professor deVries properly relied on factual assumptions based on deposition testimony, and he provided a "discernible methodology" for determining the reasonableness of plaintiff's account of the positioning of the plastic, the court found. An expert testifying that a disputed fact actually occurred would be manifestly improper, but an expert giving an opinion based upon factual assumptions is not, the court said.
The court did agree with the defendants to exclude Professor deVries' opinion that the plaintiff's arm was drawn into the roller by the dangling plastic. Professor deVries could rely on plaintiff's account of the incident when forming his opinion, or base his conclusions on some established fact, but there were no other established facts and the plaintiff had testified that when she went to grab for the plastic, the rubber palm of her glove caught on the metal and drew her arm into the roller. The plaintiff's testimony flatly contradicted Professor deVries' opinion.
The court did not, however, agree with defendants to exclude the entirety of Professor deVries' causation opinion. Even if the dangling plastic did not draw plaintiff's arm into the roller, Professor deVries's opinion that the failure to include a guard was the cause of plaintiff's injury is still viable and is adequately supported by Professor deVries' findings.
While the defendant's motion to exclude Professor deVries' opinions was successful in part, the majority of his opinions remained.