Plaintiff’s Expert Can Disagree with Plaintiff’s Version of Events

Posted on November 10th, 2014 by Jonathan M. MenuezJonathan M. Menuez

Few issues in litigation spark more heated arguments before the bench than the admission or exclusion of expert testimony. This is especially true in litigation alleging a defective product.  Regardless of the specifics of these arguments, the victor is determined by the interpretation and application of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny as codified in FRE 702.

Recently, the USDC for the Sixth U.S. Circuit determined that expert testimony is relevant and admissible even if it contradicts the plaintiff’s sworn testimony. The plaintiff in the product liability case, Mark D. Lee v. Smith & Wesson Corp., received serious and permanent injuries to his eye and face when firing a revolver produced by the gun manufacturer.  Litigation ensued under theories of defective design, manufacture, and lack of adequate warnings.

In response to pretrial motion practice, the District Court granted Smith & Wesson’s motion to exclude the testimony of plaintiff’s primary expert. The Court reasoned that the opinions failed to satisfy FRE 702’s relevancy requirement due to inconsistencies between the expert’s reconstruction of the incident and the plaintiff’s actual testimony.  In reversing the ruling, the Sixth U.S. Circuit reasoned that, in the event that the plaintiff was mistaken about certain key facts, the contradicting testimony of the expert would be highly relevant to determine whether the gun was defective.  In so ruling, the Court stated, “[t]he rule in Ohio, as well as in federal practice, is that a party is not precluded from proving his case by any relevant evidence, even though that evidence may contradict the testimony of a witness previously called by him.” Dickerson v. Shepard Warner Elevator Co., 287 F.2d 255, 260 (6th Cir. 1961).

The Sixth Circuit determined that the proposed expert exhibited the appropriate qualifications, utilized reliable methods, and based his opinions upon physical evidence from the accident. Accordingly, in the event the jury determined that the plaintiff was inaccurate in his recollection of the facts; they should be permitted to consider the expert’s version of events.  The Court also emphasized that the defendant presented no alternative testimony nor did it challenge the “factual underpinnings” of the expert’s testimony

The opinion was not unanimous. Justice Damon Keith wrote in his dissenting opinion that “Daubert does not require that a trial judge open the gate to all speculation” and he would have affirmed the District Court’s decision to exclude the expert’s testimony.

The full text of the decision can be found here.