The weight of expert testimony in product liability cases can hardly be overstated. Because complex questions of scientific and medical causation often hold sway, juries are thirsty for someone to tell them what the evidence means, and thus the inevitable “battle of the experts” ensues. But what happens when an expert tells the jury that the physical evidence means his client’s own recollection of events is wrong? According to the Sixth Circuit Court of Appeals, such expert opinion is not only admissible, but district courts abuse their discretion by excluding it.
In Lee v. Smith & Wesson Corp., 2014 WL 3715084, — F.3d — (6th Cir., Jul. 29, 2014), the plaintiff’s testimony was very clear that the third target practice shot he fired from his Smith & Wesson revolver – during which the gun discharged improperly and seriously injured Lee’s face – was no different from the previous two: He had no difficulty with the gun, the cylinder was closed when he fired, and he never touched the thumb latch. His sole causation expert’s opinion, however, was directly contrary: “When Mr. Lee attempted to fire his gun for the third shot, the cylinder failed to fully close and the gun would not fire. Not understanding the problem and as the cylinder appeared to be closed, Mr. Lee pushed on the thumb latch and in so doing was able to cock and fire the gun with the result experienced.”
Defendant Smith & Wesson sought to exclude the opinion of Lee’s expert on the ground that it was fundamentally inconsistent with his client’s testimony and thus irrelevant under Federal Rule of Evidence 702. The district court agreed and granted Smith & Wesson’s motion in limine. Thereafter, Lee agreed to a stipulated dismissal and appealed.
The Sixth Circuit reversed and remanded, holding 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.” Thus, “[e]ven under the deferential abuse-of-discretion standard, the district court’s exclusion of [the expert’s] testimony as inadmissible under Rule 702 was not proper.” The “expert testimony should have been admitted” because the expert “had the appropriate qualifications, he used reliable methods, and his opinion was based on physical evidence from the accident.” As the first two reasons were never challenged, the court’s ruling necessarily turns on the expert opinion’s foundation in the evidence.
The court began, however, by pointing out that the expert’s opinion had support from other testimonial evidence. Specifically, Lee’s friend and another witness each testified that the gun’s cylinder was open in the moments immediately after the third shot. According to the court, “[t]his evidence supports [the expert’s] theory and contradicts Lee’s testimony.” As a result, “a reasonable fact finder could conclude that Lee thought he had closed the chamber but in fact did not, and instead overlooked the opening,” and thus his expert’s opinion based on that predicate “would be highly relevant to determining whether the gun was defective.”
“It is true,” the Sixth Circuit conceded, “that expert testimony should be excluded if it relies on facts that no jury could accept, or relies on the rejection of facts that any jury would be required to accept.” However, the court held, those facts must be grounded in the physical evidence. To illustrate, the Court cited its decision in Greenwell v. Boatwright, 184 F.3d 492, 497-98 (6th Cir. 1999), a motor vehicle collision case in which the plaintiff’s theory – supported by eyewitness testimony – was that the defendant’s truck “fish-tailed,” but the defendant’s expert relied on physical evidence in opining that no fish-tailing occurred. The Greenwell court held that such expert testimony was only properly excluded where the opposing party “present[ed] facts that plainly contradict the physical evidence upon which the expert based his theory of the accident.”
The Court concluded by making an observation that might reasonably be called the loadstar of its analysis: “A tort plaintiff 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.”
The Sixth Circuit’s analysis holds a certain logical appeal. It makes sense that an expert could demonstrate from the physical evidence that a witness’s recollection must have been mistaken. On the other hand, only the witness is an expert in his or her own conduct. It therefore seems odd to allow an expert to substitute his own speculative version of events – constructed specifically to support his theory – for the witness’s own contrary recollection, simply because the physical evidence does not absolutely prohibit the expert’s version. It is doubly odd to compel a district court, whose evidentiary rulings are usually granted wide latitude, to admit expert opinion despite testimonial evidence that is directly contradictory. Indeed, the Sixth Circuit’s own use of eyewitness testimony to buttress the expert’s opinion suggests that testimonial evidence is not as irrelevant to the analysis as the Court’s articulated rule would require.
Oddities aside, it remains that, in the Sixth Circuit at least, a party is no longer bound to causation theories that match his own testimony – as long as his expert can explain how the physical evidence supports, or at least does not negate, a contradictory opinion. Although corroborating testimonial evidence is apparently beneficial, as well.