Day on Torts
The 7th Circuit Court of Appeals has upheld a plaintiff’s verdict in a products liability case notwithstanding the defendant’s assertion that the plaintiff’s expert should have been excluded under Daubert.
In Lapsley v. Xtech, Inc., No. 11-3313 (7th Cir. July 27, 2012) Industrial grease was propelled in a jet with enough energy to penetrate and pass through the human body like a bullet. That jet hit and disabled plaintiff Leonard Lapsley. The jury found that the accident occurred because defendant defectively designed the piece of equipment that propelled the grease.
Defendant challenged the admissibility of plaintiff’s expert witness, arguing that he lacked a scientific basis for his testimony. The trial judge permitted the witness to testify, and the defendant challenged that ruling on appeal after a jury found it liable for Lapsley’s injuries.
The 7th Circuit Court of Appeals said this in affirming the trial court’s ruling:
We do not require experts to drop a proverbial apple each time they wish to use Newton’s gravitational constant in an equation. Similarly here, the burden of proof at trial, and certainly the guideposts of reliability attached to the Daubert inquiry, did not require Dr. Hutter to try to recreate the binding up of a ten thousand pound spring to produce a potentially deadly jet of industrial grease. Xtek was free to raise the lack of physical tests of the accident with the jury, and to attack any aspect of the mathematical model that was used in place of physical re-creations. The district court, however, did not abuse its discretion by allowing Dr. Hutter to testify to the results of his mathematical simulations.
There is more. Here is what the court said on the issue of whether the expert was properly permitted to testify on the foreseeability of the event:
Unlike the opinions discussed above, no one needs to understand physics to counter design evidence effectively or to criticize it as dependent on hindsight bias. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. “These conventional devices, rather than wholesale exclusion under an uncompromising "general acceptance’ test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702.” Id.
The accident that disabled Leonard Lapsley appears to have been unprecedented, and fortunately it has not been repeated with other millwrights. The uniqueness of an accident can weigh against jury findings of foreseeability and lack of reasonable care in design, but that is a matter for the jury to decide. The jury here accepted Dr. Hutter’s uncontradicted expert opinion that a reasonable designer would have considered the danger of the powerful spring being bound up unexpectedly and releasing its energy so as to act like a ram on the grease in the spindle assembly. Rule 702 provides a test of reliability, not of ultimate merit. District courts acting as gatekeepers of scientific, technical, or specialized knowledge evidence retain significant discretion under the flexible Daubert inquiry. The district court here did not misapply Daubert, and Xtek has identified no compelling reason to disturb the court’s exercise of its discretion.