Dr. Gary Nelson, a safety engineer and manager, offered opinions in a slip and fall case where a customer slipped on liquid that leaked from a bottle of cleaning fluid. Lane v. Target Corp. 2006 WL 870805 (S.D. Tex. April 3, 2006). Dr. Nelson offered two basic opinions: first, that the store failed to have a policy and practice to immediately secure a spill area before obtaining cleaning supplies, and second, that a product display that can be contacted by shopping carts in a high traffic area should have a barrier around it or it amounts to an unsafe condition. After reviewing the case law interpreting Fed. R. Evid. 702, including Daubert and Kumho Tire Co., the court determined Dr. Nelson’s testimony was not reliable or relevant.
The plaintiff was unable to show the court any evidence that the store’s employees had notice of the spill in time to have prevented the plaintiff’s accident, therefore, any store policy and practice to secure the spill area before retrieving cleaning supplies would be irrelevant because it would not have prevented the customer’s incident. Id. at *3. Dr. Nelson’s testimony that the product display was dangerous was also not reliable or relevant. Dr. Nelson, who testified during the hearing on the defendant’s Motion to Exclude Expert Testimony, could not cite any supporting materials such as literature or other studies related to the safety of product placement in a retail store. Without supporting literature, the court was unable to determine that his technique was generally accepted or had ever been subjected to peer review scrutiny. The court noted the Fifth Circuit “has explicitly required that a litigant provide ‘some objective, independent validation of the expert’s methodology.’” Id. at *4-*5. Dr. Nelson argued during the hearing that there was no specific provocation related to his analysis of the display of cleaning products in the Target Store, but that it was reliable because the “ingredients” used in his analysis were well accepted in his field. He commented that putting a barrier around a display can help prevent falling merchandise. Dr. Nelson tried to convince the court that he “merely logically combined these well-accepted factors to conclude that the Defendant’s product display was unreasonably dangerous”. Id. at *5. Unfortunately for the plaintiff, the court determined that none of the individual “ingredients” used by Dr. Nelson were generally accepted, nor did Dr. Nelson apply the “ingredients” reliably to the case in that he had no support for his arguments about the use of a barrier around the display, what the definition of a “high traffic” area of the store even meant, or how often shopping carts hit displays. Dr. Nelson went on to conclude that he evaluates the dangerousness of a condition by a “subjective formula of multiplying the ‘hazard’ by the ‘risk.’” Id. at *6. The court determined that this type of subjective dangerousness calculation is something that laypeople do all the time, therefore, Dr. Nelson’s testimony was not relevant or helpful to the jury.
It is not appropriate to have an expert reiterate the same testimony of another expert simply to validate or add credibility to the first expert. In Re: Vioxx Products Liab. Litig., 414 F. Supp. 2d 574 (E.D. LA. Feb. 3, 2006). The plaintiff in this suit alleged that Vioxx is defective and that the manufacturer, Merck, failed to adequately warn of the defective nature of the medication, which caused the plaintiff’s husband’s death. Expert testimony was central to the litigation, and the court ruled on no less than 16 Daubert Motions. Two of the Daubert Motions filed by Merck sought to exclude testimony by two physicians. The court determined that scientific testimony can only be relevant where the witness’s methodology can properly be applied to the facts at issue. It is the proponent’s burden to show the testimony is relevant and reliable. The plaintiff offered the testimony of Dr. Robert Fletcher who expected to testify regarding adverse events that were reported to the New England Journal of Medicine. However, Dr. Gregory Curfman, Executive Editor of the New England Journal of Medicine, already testified in deposition regarding the same effects of the medication. Therefore, the court concluded that Dr. Fletcher’s testimony would not assist the jury because it was simply a reiteration of Dr. Curfman’s deposition testimony. The court determined that “validating or adding credibility to another witness’ testimony is not the proper realm for an expert.” Id. at 14.
The plaintiff also offered testimony by Dr. Michael Graham that taking Vioxx for less than 30 days could cause a thrombotic cardiovascular event. However, the court determined that Dr. Graham was not qualified to talk about general or specific causation, and that his testimony was unreliable. During deposition, Dr. Graham agreed he had no training in pharmacology, could not explain how Vioxx could lead to thrombosis, and could not analyze or interpret epidemiological data concerning Vioxx. Dr. Graham testified he had spent about eight hours reviewing medical literature, depositions, expert reports, and other materials, which the court concluded was far less work than it or any of the attorneys had done in preparation for trial. It certainly makes sense that reviewing materials in preparation for trial is not sufficient background to offer expert testimony.
Robert G. Smith serves as the Regional Editor of Daubert Online, is a member of the Medical Liability and Health Care Law Committee, and serves as the Expert Witness Chair for that Committee. He is a partner with Lorance & Thompson, PC, where his litigation practice involves medical malpractice, personal injuries, product liability, and premise liability. Rob’s clients have included physicians, hospitals, private corporations, individuals, manufacturers, and landowners, among others. He is a Phi Delta Phi graduate of the University of Houston Law Center, and a Phi Beta Kappa graduate of Louisiana State University in mathematics. He can be reached at Lorance & Thompson, 2900 North Loop West, Suite 500, Houston, TX 77092, 713.868.5560, 713.864.4671, fax, E-Mail: rgs@lorancethompson.com.
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