By Michael Hoenig - New York Law
Journal - September 15, 2014
This article focuses on a seemingly "exquisite" question in the law and
lore of expert admissibility battles, namely, what happens when
a party's factual testimony under oath contradicts his own
expert's theory as to how the accident happened and how the
alleged defect in the product could have caused the injury? Does
the expert simply have a green light to opine irrespective of
his party's version of what happened? Or is he somehow bound by
the sworn factual testimony? Is the expert's opinion impaired by
the conflict since the expert testimony must "fit the facts"?
This situation occurred in
v. Smith & Wesson,1 a
divided opinion by the U.S. Court of Appeals for the Sixth
Circuit issued on July 29. I refer to the issue as "exquisite"
because decent arguments can be made on both sides, depending on
But first, a
short update post-script to last month's article. In my Aug. 11
Causation Opinion Excluded by 'Zoloft' MDL Judge,"2 the
hazards of an expert "cherry-picking" among technical articles
for seemingly supportive statements, while ignoring other
abundant literature to the contrary, were discussed. In
Re Zoloft,3 the
federal judge on June 27 excluded expert opinions that the
antidepressant Zoloft caused birth defects to children born to
mothers who took the drug during pregnancy.
methodology was deemed unreliable under Daubert's criteria4 and
the opinions were held inadmissible under Federal Evidence Rule
702. Interested readers should note the Zoloft multidistrict
litigation (MDL) judge's new ruling on Aug. 12, which excluded
three additional expert causation opinions following a Daubert
new opinion is likewise detailed and informative.
Now, back to
our discussion of the Lee decision dealing with the expert who
contradicts important aspects of his own party's testimony on
how the purported defect caused the injury. The intriguing
question split four judges. Two of those happened to be the
majority of the Sixth Circuit panel so the plaintiff won. But
the dissenting appellate judge and the district judge who
excluded the opinion below favored the defendant. This schism
reflects tensions that counsel should not ignore. There's plenty
of room for advocacy.
Here is how the
Lee controversy unfolded. Plaintiff, Mark Lee, was injured while
target shooting a revolver made by defendant Smith & Wesson. He
successfully fired twice. On the third shot, however, the gun
discharged improperly, injuring his right eye, face and nose.
According to Lee, the gun cylinder swung open and caused the
blast from the shot to knock his safety glasses off and damage
his right eye, leading to pain and loss of vision.
Lee (and his
wife) sued in an Ohio state court. Defendant removed the suit to
federal court. Lee alleged that the revolver was defective in
manufacture and design, in lacking warnings, and in not
conforming to defendant's representations. The manufacturer
claimed that Lee's injuries were caused by recoil.
In support of
his claims,Lee sought to introduce the expert testimony of a
mechanical engineer, Roy Ruel. After examining Lee's revolver
and other materials, the expert concluded that Lee's accident
resulted from the firing of the revolver "without its cylinder
fully closed and locked." This condition caused "hot high
pressure gas" to be expelled from the revolver when fired,
striking Lee in the face and causing his injuries. The expert
opined that the firearm was defective in both design and
manufacture because it could be "cocked and fired with a pull of
the trigger without its cylinder closed and locked." Ruel also
determined that the ejector rod could become loose, which would
prevent the cylinder from closing and locking due to mechanical
interference. Further, the expert asserted that the manufacturer
failed to provide adequate warnings regarding these conditions.
to exclude Ruel's testimony arguing that it failed to satisfy
Evidence Rule 702's "relevancy" requirement because of
"inconsistencies" between Ruel's reconstruction of the incident
and Lee's testimony. The district judge granted defendant's
motion in limine agreeing that the expert's testimony flunked
requirement. What were the inconsistencies?
deposition: (1) Lee testified that he had no difficulty firing
the gun the third time, whereas the expert said the gun did not
immediately fire because the cylinder failed to close fully; (2)
Lee testified that the cylinder was closed when he fired,
whereas Ruel stated it was open but appeared to be closed; (3)
Lee's demonstration of his grip on the gun showed that he did
not touch the thumb latch, whereas the expert said that Lee
pushed on the thumb latch.
that he was able to close the cylinder "when he rechambered the
third round," that it opened and closed normally, that he
noticed nothing different when loading the third round, and that
the gun fired just as it had every other time, but that when he
shot he had the sensation that "somebody hit me with a
sledgehammer in the face." When he fired, Lee testified, "it
didn't sound right, something was different," and he saw a
district court's grant of the motion in limine, plaintiff agreed
to a stipulated dismissal, preserving his right to appeal. The
court granted the motion and dismissed the case.6 On
appeal, by a 2-1 vote, the Sixth Circuit panel concluded that
"Ruel's expert testimony should have been admitted." Why?
Because, said the court, he "had the appropriate qualifications,
he used reliable methods, and his opinion was based on the
physical evidence from the accident." The physical evidence was
the gun. The reliable scientific methods were "engineering
skills" used in rendering his opinion. In preparing his report,
the expert examined the revolver, numerous reports and witness
accounts of the accident, Lee's medical records and photos of
the revolver. After examining the gun, he concluded that "Lee's
accident was the result of his revolver firing without its
cylinder fully closed and locked."7
majority reasoned that, although the district court correctly
observed that the expert's theory contradicted Lee's testimony
in a number of particulars, the 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."8 Here
the expert planned to opine as set out above. Thus, said the
court, "[i]f Lee was mistaken about whether he fully closed the
cylinder, this testimony [by the expert] would be highly
relevant to determining whether the gun was defective."
In light of
this possibility, "a jury presented with no believable
alternative explanation could believe that Lee's testimony was
wrong." Although Lee testified that he closed the chamber and
fired the gun without incident, a "reasonable fact finder could
conclude that Lee thought he
had closed the chamber but in fact did not." Instead, "he
overlooked the opening," which the expert suggests happened
friend, to whom Lee handed the gun after the misfire, testified
that the cylinder was open at the time Lee handed it to him.
Another witness confirmed that the chamber was open when Lee put
the gun down. This evidence, said the court, "supports Ruel's
theory and contradicts Lee's testimony. In short, it is not a
forgone conclusion that the jury would agree with Lee that he
fully closed the chamber and was able to cock the gun without
difficulty before firing it."10
The court found
support for its conclusion in
v. Boatwright,11 a
motor vehicle collision case where plaintiff's theory relied on
"fish-tailing" by defendant's truck before impact, a theory
rejected by defense experts. Eyewitnesses, however, gave
evidence of fish-tailing. Applying a Daubert analysis, the Sixth
Circuit allowed the defense expert's opinion because it was
based on physical evidence and because "expert testimony is not
inadmissible simply because it contradicts eyewitness
testimony." Further, the plaintiff in that case did not
challenge the "physical evidence," which was the basis of the
expert's testimony. Similarly, in Lee,
the gun manufacturer did not challenge the physical evidence.12
majority conceded that testimony should be excluded "if it
relies on facts that no jury could reject, or relies on the
rejection of facts that any jury would be required to accept."
Thus, the holding in Greenwell was
qualified by the explanation that "[e]xpert testimony…is
inadmissible when the facts upon which the expert bases his
testimony contradict the evidence." The witness testimony inGreenwell,
however, did not contradict the physical evidence upon which the
expert based his reconstruction.
distinguished Lee's case "from cases in which we have properly
rejected expert testimony as inconsistent with the plain facts."
The panel majority also concluded that Lee's deposition
testimony did not constitute a "judicial admission." Lee only
testified as a witness "to what he remembered." A tort
plaintiff, said the court, "should be able to testify honestly
to his memory of what happened and still have his lawyer argue
that on the evidence as a whole it is more probable than not
that the memory was faulty." If no jury could reasonably
conclude that the plaintiff's memory was faulty, dismissal would
be warranted. But that is not the case on this record, said the
Is that it? An
expert can openly admit that he disregarded the plaintiff's
account of the events in reaching his hypothesis and, thereby,
require the trial judge to open the gate to all speculation by
the expert? Not so fast! There is a dissenting opinion in Lee and
it has some respectable countervailing points.14
observed that the district judge properly exercised his
"gatekeeping" discretion when he excluded Ruel's testimony on
the basis that it did not "fit" the facts of the case and,
therefore, did not satisfy the relevancy requirement of Rule
702. To set aside the trial court's ruling there must have been
an "abuse of discretion," i.e., the reviewing court must be
"firmly convinced" that a mistake has been made. The district
court's discretion as a gatekeeper is said to be "broad."
prong of Rule 702 requires that an expert's theory adequately
"fit" the facts of the case. Expert testimony that does not fit
the facts "does not relate to an issue in the case and,
therefore, is not relevant." The standard for "fit" is "higher
than bare relevance."15 A
judge is well within her discretion to exclude potential
testimony which she believes does not fit the facts and is
contradicted by the available testimony.16 Here,
Ruel's theory posits that Lee was mistaken about whether he
fully closed the gun's cylinder. "Although certainly a
possibility, the trial judge is not required to navigate the
outermost bounds of speculation, especially when the facts of
the case do not support the hypothesized condition."
imputation that Lee "deliberately" manipulated the firearm, and
did so in a highly unusual manner, is wholly unsupported by the
record. This is a "key incongruity" that "convinces" the
dissenting judge that the trial judge did not abuse his
discretion in excluding the expert testimony. Opinion evidence
that is connected to the existing data only by the expert's
"ipse dixit" is not required to be admitted. The court may
conclude that "there is simply too great an analytical gap
between the data and the opinion proffered."17
At the outset,
I referred to this controversy as perhaps an "exquisite" issue
among expert admissibility battles. The competing rationales for
one approach or the other seem respectable. Further, the
question can impact both plaintiffs and defendants. Here, the
panel majority suggests that the party's own expert can
repudiate the factual testimony given by the party so long as
other evidence exists to support the expert's opinion. However,
does that premise say too much? The majority explains that the
plaintiff "could have been mistaken." Maybe he only "thought" he
had closed the chamber and a jury might so find.
But isn't that
surmise of "possibilities" in itself speculation (by the
appellate court)? And that conjecture is then used to allow the
expert to opine in contradiction to the firm testimony of the
plaintiff who was actually there, the person who pulled the
trigger. This is not the case of a plaintiff who does not
remember or whose testimony is tenuous or equivocal. The
plaintiff was resolute in his description of what happened. He
even demonstrated on a photograph how he held the gun. These
facts contradicted and simply did not support the expert's
theory. Rule 702 and Daubert's factual
"fit" admissibility criteria are supposed to screen out expert
speculation, not fuel it. Bottom line: There is much here for
counsel to ponder on a question that recurs.
1.2014 U.S. App. Lexis 14393 (6th Cir. July 29, 2014).
New York Law Journal, Aug. 11, 2014, p. 3 (also available on
Re Zoloft, 2014 U.S. Dist. Lexis 87592 (E.D. Pa.
June 27, 2014).
v. Merrell Dow Pharms., 509 U.S. 579, 593-94 (1993).
Re Zoloft, 2014 U.S. Dist. Lexis 111063 (E.D. Pa.
Aug. 12, 2014).
Lee, 2014 U.S. App. Lexis 14393, at *6.
Id., Lexis at *6-*7.
Id., Lexis at *7-*8 (citing and quoting Dickerson
v. Shepard Warner Elevator, 287
F. 2d 255, 260 (6th Cir. 1961)).
Id., Lexis at *8-*9. (Emphasis by court).
Id., Lexis at *9.
184 F. 3d 492, 497-98 (6th Cir. 1999).
Lee, Lexis at *10.
Id., Lexis at *13-*14.
Id., Lexis at *14-*20 (dissenting opinion by Judge Damon J.
Id., Lexis at *16 and n. 1 (dissenting opinion) (citing Daubert,
509 U.S. at 591).
Id., Lexis at *17-*18 (citing numerous cases).
17. Id., Lexis at *19-*20 (dissenting opinion) (quoting General
Electric v. Joiner, 522 U.S. 136, 146 (1997)).
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