Expert Witness

South Carolina Imposes Heavy Burden on Experts in Design Defect Cases

Adam S. Tolin | Weil Gotshal & Manges LLP
December 29, 2014

Recently, a South Carolina district court excluded a very experienced engineer from offering expert testimony regarding the design on an obscure product on grounds that he lacked the requisite experience with that particular product. Estate of Ravenell ex rel. Ravenell v. Pugmill Systems, Inc., 2014 WL 7146848 (D. S.C. Dec. 15, 2014). This strict interpretation of Rule 702’s qualifications requirement is notable not only because the plaintiff appeared incredibly sympathetic and the expert’s qualifications may have been a close call, but also because the expert’s own report came back to bite him.

In Pugmill, the plaintiff was a disabled widow of an employee of a construction company who was fatally injured while performing maintenance on an asphalt mixer (a “pugmill”), which is a component of a hot-mix asphalt plant. The widow sued the manufacturer of the pugmill and the manufacturer of the pugmill’s motor.

At the time of the accident, the employee was attempting to clean or otherwise maintain the pugmill’s paddles. It was undisputed that prior to entering the machine, he did not properly “lockout” and “tagout” the pugmill’s energy supply. While he was inside of the pugmill, a fellow employee entered the asphalt plant’s energy center, and mistakenly activated and started the pugmill, trapping the employee inside of the pugmill and killing him.

The widow claimed that the pugmill was defective because it had neither an emergency stop (“e-stop”) nor an interlock device that prevented the machine from operating when the covers were removed. She retained an expert engineer, Stephen Fournier, who has a B.S. in engineering and been practicing for over thirty years. On the surface, Mr. Fournier, appears more than qualified to offer an opinion on the engineering and construction of certain equipment. According to his CV, Mr. Fournier possesses decades of experience in “technical investigations, analysis, reports, and testimony for failure analysis, and towards the resolution of commercial and personal injury litigation involving: construction in progress, completed construction, time and economic claims, workmanship, code compliance, and personal injury accidents.” Id. at *5.

The defendants moved to dismiss his testimony on grounds that Mr. Fournier was not qualified because he lacks the requisite expertise in asphalt plants and pugmills. The widow, in response, argued that “specific expertise is not necessary and that Mr. Fournier’s lack of specialization should only ‘affect the weight of the opinion rather than [its] admissibility.’” Id. The court excluded his testimony on grounds he lacked the requisite experience.

Of note, the court determined that the expert set up his own failure in his expert report. The court began its analysis by noting that “Mr. Fournier himself indicated that the purpose of his investigation was to ‘determine if one of the causes of the subject incident and fatal injuries sustained was a failure to provide an interlock and/or an E–Stop as part of the pug mill equipment.’” Id. (citing his expert report). In light of this structure, the court evaluated Mr. Fournier’s expertise in an extraordinarily narrow manner. See id. (“Mr. Fournier’s qualifications must be evaluated in light of this purpose and his stated conclusions.”). The court concluded that Mr. Fournier could not meet the heavy burden his own report placed on him. “After thorough review and thoughtful consideration, the Court finds that there is nothing in Mr. Fournier’s CV or in his deposition testimony that reveals any particular knowledge, skill, or experience related to interlocks, e-stops, pugmills, asphalt plants, or even industrial equipment similar to the equipment involved in the accident in question.” Id. at *6. Despite his decades of experience, the court based its findings on Mr. Fournier’s deposition testimony that “he has not worked for, consulted for, or been retained by a company that owns, designs, or manufactures asphalt plants or pugmills. Further, Mr. Fournier has not himself designed an asphalt plant, pugmill or other similar mixer, interlock system, or e-stop for any product, and he has not previously spoken about or been published on any related topics. Moreover, he has neither operated an asphalt plant or pugmill nor so much as observed an asphalt plant or pugmill in operation. Indeed, the first time he saw a pugmill was at the site inspection for this litigation.” Id. While Mr. Fournier had years of experience evaluating product defects and investigating accidents, he never did such an investigation regarding this incredibly obscure and rare product. That was enough for this South Carolina court to exclude him.

The court’s final note appears to be a recognition that it would have more difficulty reaching this conclusion had the expert presented himself as a more general expert, offering more generalized opinions. “[T]he Court is sympathetic to the fact that it may have been difficult to locate an expert familiar with pugmills, it certainly would not have been onerous to find an expert qualified to render opinions on industrial equipment more generally or on possible electrical or mechanical safety devices for heavy equipment.” Id.

It is not clear if the court would have reached the same conclusion had the expert couched his opinions more generally. (The court also concluded that Mr. Fournier failed to identify a reasonable, alternative safer design). But, this opinion is a useful reminder that expert reports should be carefully drafted so as not to inadvertently raise the expert’s Rule 702 burden beyond his or her qualifications or capabilities.

The content of this article is intended to provide general information and as a guide to the subject matter only. Please contact an Advise & Consult, Inc. expert for advice on your specific circumstances.

SOURCE: www.lexology.com

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