Relying on Non-Standard Evidence Gets Expert Excluded Under Daubert

Assuming that a victim probably did not draw his compound bow and then stick his head in the bow because he was known to be cautious was not the type of evidence that biomechanics expert witnesses normally rely upon, the 5th Circuit Court of Appeals has affirmed in excluding an expert under Daubert.

In Sandifer v. Hoyt Archery, Inc., 5th Circuit, No. 17-30124 (2018), Dr. Alan Sandifer had been alone in his office with his compound bow, searching the internet for a new part, when the cable guard of his bow pierced his skull, the rod going deep into his brain. Dr. Sandifer died the next day.

The Sandifer family sued the bow manufacturer, Hoyt Archery, contending that the bow was defective, causing the cable guard to release and kill Dr. Sandifer.

Hoyt contended that Dr. Sandifer, while attempting to modify the bow, placed his head in the bow while pulling the drawstring and then accidentally lost control of the string.

The Sandifer family retained Dr. Gautam Ray, a biomechanial engineer expert witness, who the district court had qualifed and who testified during discovery that it was most likely that Dr. Sandifer's head ended up between the cable guard and the string involuntarily.

During the years that passed before going to trial, Dr. Ray was diagnosed with terminal cancer and withdrew from the case. The Sandifer family moved to allow a substitute biomechanical engineer, Dr. Rajeev Kelkar. The district court agreed to the substitution, but limited the scope of his testimony to the expertise and methodology of Dr. Ray.

In his expert witness report, Dr. Kelkar concluded that it was “most likely that Dr. Sandifer's injury resulted from a twisting of the bow string.” During his deposition, Dr. Kelkar conceded that, from a strictly biomechanical perspective, “it was just as likely that Dr. Sandifer was killed by volitionally placing his head inside the bow as it was by an accidental twisting of the bow string.” He believed the second scenario more likely because Dr. Sandifer's friends and family had described him as a “meticulous” and “very safety conscious” bow hunter. As well, Dr. Sandifer was a highly experienced bow hunter who would know not to draw the bow string and then put his head in the bow.

Hoyt moved to exclude portions of Dr. Kelkar's report, arguing that they went beyond the scope of Dr. Ray's report. The district court agreed that Dr. Kelkar's “propensity inferences” were not a reliable basis for an expert biomechanical opinion. The Sandifers argued that Dr. Kelkar's concession was an isolated mistake, but the district court disagreed and granted Hoyt's move for summary judgment.

The Sandifers family appealed, arguing that the district court abused its discretion by excluding Dr. Kelkar's opinions based upon Dr. Sandifer's safe archery practice.

In reviewing the district court's decision, the 5th Circuit Court of Appeals noted that Dr. Kelkar had admitted in his deposition that his statements based upon evidence of “Dr. Sandifer's habits as an individual” were not “biomechanical opinions.” The 5th Circuit found that Dr. Kelkar had exceeded the scope of his qualifications as a biomechanical expert in using such propensity evidence.

The 5th Circuit expounded upon the issue, noting that Dr. Kelkar had drawn his conclusion based on the propensity evidence offered by witnesses who testified that Dr. Sandifer was a safety-conscious bow hunter — but that Dr. Sandifer was not hunting when the accident occurred.

In its conclusion, the 5th Circuit found that Dr. Kelkar had admitted that his opinion was based on unscientific propensity evidence not reasonably relied upon by experts in the biomechanical field. Thus, Dr. Kelkar failed to satisfy the Daubert requirements. The 5th Circuit affirmed the district court's summary judgment.