Case of the Day – Thursday, March 23, 2017

THE GUY FROM OUT OF TOWN

"100% Expert" Cachet (bleu)Mark Twain is reputed to have once said that an expert is just some guy from out of town.

There are a lot of guys like that in the legal system, as cases rely more and more on esoteric problems that a jury just can’t understand on its own. It is axiomatic in legal circles that witnesses can’t give their opinions, but instead must confine themselves to the facts. Legend incorrectly has it that Sgt. Friday said as much: just the facts, ma’am. And the rules of evidence, both state and federal, largely confine witnesses to “just the facts.”

But those same rules of evidence let certain witnesses known as “experts” give their opinions. Naturally, as soon as a good idea like expert witnesses was rolled out, lawyers started to abuse it. Remember the “Twinkies defense?” It relied on an expert to explain to the jury the junk science behind the notion that crème filling was a foreseeable cause of death, murder and mayhem.

Notwithstanding the occasional black eye lawyers and their experts can give the legal system, expert witnesses are crucial as case get more and more complex. That’s as true in tree law as in most other tort (and many contract) cases. Whether a witness can be qualified as an expert is for the court to determine, and depends on the witness’s education, experience and qualifications. Once qualified as an expert, the witness can give opinions based on a written report provided to the other party. Those opinions must be based on sufficient data, and be the product of reliable principles and methods applied reliably to the facts of the case.

expertcar160210The rules of evidence have effectively moved decisions that control the outcome of a case to a time well prior to the seating of the jury. Today’s case is a good example. Hiram Hyde’s family sued the maker of a stump grinder, after the late Mr. Hyde fell in and … well, we’ll leave it to your imagination. The Hyde’s expert witness wanted to testify that putting a clutch mechanism — kind of a cut-off handle like one finds on a rotary mower — on the grinder was easy, economical and logical. The maker’s expert wanted to argue just the opposite.

Both parties went at the other’s experts, questioning their qualifications and opinions. The federal district court referred the matter to a magistrate judge, kind of an assistant judge intended to handle pre-trial and other tedious matters, who ground through the competing claims without being stumped. He concluded that the experts were qualified, but the stump grinder’s guy couldn’t testify to some of his conclusions because they were based on unreliable data.

Hyde v. Vermeer Mfg. Co., 2007 WL 2329688 (W.D.Tex. Aug. 7, 2007). Hiram B. Hyde died when, while attempting to grind a tree stump using a stump cutter, he became entangled in the cutting and grinding wheel of the stump cutter. His wife and adult kids sued under the Texas Wrongful Death and Survival Statute, arguing that the stump cutter — a Vermeer model SC252 designed, manufactured and distributed by Vermeer Manufacturing Company — was defective.

They sued Vermeer for money damages under the doctrine of strict product liability for alleged defects in the stump cutter; negligence in the design, manufacture, sale, and marketing of the stump cutter, negligence in failing to give adequate or proper warnings or instructions for the stump cutter, negligence based on failure to recall the stump cutter, breach of warranty that the stump cutter was fit for the purposes for which it was intended, and for punitive damages based on gross negligence.

ask160210Because no one witnessed the accident, the trial of this case was going to depend on the jury’s consideration of expert opinions about the design of the stump cutter. Each side moved to exclude the other party’s expert witnesses. The trial court referred the matter to a magistrate judge for a recommended decision.

Held: Some of the proposed testimony from one of Vermeer’s experts should be excluded, but none of the expert witnesses should be thrown out.

The Magistrate Judge noted that Federal Rule of Evidence 702 provided for the admissibility of expert testimony if it will assist the trier of fact to understand the evidence or to determine a fact in issue, and if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Rule 703 provides that an expert’s opinion is generally admissible so long as the facts and data underlying that opinion are of a type reasonably relied on by experts in the field.

The Hydes offered Russ Rasnic as an expert to testify about feasible alternative designs that Vermeer could have incorporated into the SC252 stump cutter to reduce the risk of an operator contacting a rotating cutter wheel. Vermeer moved to exclude Rasnic’s testimony on the grounds that Rasnic was not qualified to render his proposed opinions, and his proposed opinions were unreliable. Vermeer complained that prior to this litigation, Rasnic’s experience with stump cutters was limited to using a handlebar stump cutter to cut less than 10 stumps and observing a worker operate a hydraulic stump cutter. Vermeer also complained that since the litigation Rasnic’s experience with the SC252 consists of only 2.8 hours of operating a stump cutter. Finally, Vermeer argued that Rasnic has never worked for a manufacturer of stump cutters.

The Magistrate Judge observed, however, that a witness can qualify under Rule 702 as an expert even though he lacks practical experience, provided that he has received suitable training or education or has otherwise gained the requisite knowledge or skill. The absence of hands-on experience with the particular equipment is relevant to the determination whether to accept a witness as an expert, but it is not determinative. Here, Mr. Rasnic was a qualified mechanical engineer with expertise in industrial equipment, machine design, hydraulics, guarding, and safety engineering. He has designed machinery using clutch brakes, the safety device on which he would testify. He has numerous professional memberships, and has evaluated a number of machines in his forensic engineering practice for both plaintiffs and defendants. He had used a handlebar stump cutter to cut stumps on his property and observed a hydraulic stump cutter in operation before using one that he modified for purposes of testing the safety feature he was recommending in this case. While Mr. Rasnic may have limited experience with hydraulically-controlled stump cutters, the Magistrate Judge said, that was most likely a characteristic shared by most mechanical engineers. His credentials, training, and experience were sufficient to qualify him as an expert on guarding systems for the Vermeer SC252 stump cutter.

Vermeer designated Michael Gililland as an expert to rebut the Hydes’ argument about the need for a cut-out switch and to testify about the adequacy of the warnings on the SC252. In his expert’s report, Gililland argued that the addition of the cut-out switch will cause operators to defeat the switch, and that the SC252 is not unreasonably dangerous and the warnings on the machine are adequate. Since preparing his report, Gilliland interviewed five people who had participated in a Vermeer test of a SC252 stump cutter modified with Rasnic’s proposal. Gililland stated that his interviews confirmed the opinions expressed in his expert report. The Hydes have moved to exclude Gililland’s testimony about the 5-user test because he failed to supplement his report and that the plaintiffs did not learn about the 5-user test until after the discovery period had closed, leaving them unfairly surprised by the new information.

badge160210The Magistrate Judge agreed that the 5-user test report should be excluded. Rule 703 holds that experts may rely on three sources of information to form their opinions: (1) first-hand observation by the witness, (2) presentation at trial, and (3) presentation of data to the expert outside of court and other than by his own perception. Here, Gililland did not participate in, or observe, the 5-user test. Instead, his knowledge of the 5-user test was presented by Vermeer outside of court and was obtained by interviewing the five operators. That testimony was hearsay, the Magistrate Judge said, because Vermeer sought to use statements by the five operators to support Gililland’s opinion of the Rasnic proposal to add a cut-out switch to the SC252.

Under 703, an expert can discuss as the basis for an opinion facts or data which are otherwise inadmissible hearsay if the basis is of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. In this case, Vermeer has not shown that Gililland’s testimony about his interviews with the five operators are of a type reasonably relied upon by experts in his field. First, Gililland had no control over the test. He did not modify the SC252 stump cutters used in the 5-user test, he did not observe the modification of the stump cutters, he did not know who modified the stump cutters, and he did not know who took his photos of the modified machines. He did not record the interviews with the five operators, but instead he recorded the interviewees’ answers to his questions on a checklist form. In at least two cases, the checklist suggested the desired answer. Finally, his testimony was based on information about a test developed and conducted by his client in anticipation of litigation.

In his report, Gililland advanced several opinions about why Mr. Hyde’s actions constituted negligence and why Vermeer was not negligent. The Magistrate Judge said his opinions were legal conclusions that Gililland was not qualified to advance. The jury would determine the negligence of the parties in the trial of this case. Gililland would not be permitted to testify about his conclusions about the respective negligence of the parties.

– Tom Root

TNLBGray140407

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