The Court Examines a Variety of Substantive Attacks on Expert Opinions in this Complex Case
The United States District Court for the Southern District of Texas, Houston Division, considered motions by several parties regarding experts in a suit arising from a fire that damaged a part for a wind turbine generator. The part was manufactured in India and shipped to the Port of Houston for subsequent transportation to Minnesota. During preparations for moving the part from the ship to a truck-trailer, there was a fire that destroyed the part. Welders were removing a clip that helps secure the part to the ship’s deck. The foam insulation and fiberglass shell ignited and caused the fire. The manufacturer, Suzlon Energy Ltd., designed and manufactured the wind turbine and the American distributor was Suzlon Wind Energy Corporation. Suzlon Wind and its insurance carrier, Codan Forsikring, sued the company that was performing the welding, Shippers Stevedoring Company, ATS Wind Energy Services, which held the contracts to transport the parts to Minnesota, and Fitzley, Inc., which was hired by ATS to provide drivers, trucks, and trailers to transport the part to Minnesota. Suzlon Wind Energy Corp. v. Shippers Stevedoring Co., No. CIV. A. H-07-155, 2009 U.S. Dist. LEXIS 5422 (S.D. Tex. Jan. 27, 2009).
ATS and Fitzley filed a third party complaint for indemnification and contribution from Andrews Boom Repair, Inc., the welding company hired by Shippers, and the ABR employee Pablo Pineiro who actually did the welding.
ABR designated Ruben Arredondo, a Port of Houston employee responsible for administering hot-work (such as welding) permits. Suzlon Wind and Codan moved to exclude Mr. Arredondo because he was not designated until the date discovery closed, September 19, 2008. Suzlon Wind and Codan argued that he would necessarily have to give a deposition after the discovery deadline, and that his testimony would be about the rules and regulations of the Port of Houston Authority, that they do not apply to this case, or that the Port of Houston Authority does not enforce its own rules. ABR’s response was that Mr. Arredondo was only offering lay testimony about the Port of Houston’s requirements for hot-work permits as related to the case at issue. The testimony would be based on Mr. Arredondo’s own perceptions from working at the Port of Houston. The court determined that Mr. Arredondo’s testimony regarding the general day to day events regarding administering permits was admissible but any testimony about how the policies and his personal experience may apply to the facts at issue was excluded because Mr. Arredondo did not have firsthand information about the facts. Any testimony by Mr. Arredondo about the facts at issue would necessarily be an expert opinion.
Suzlon Wind and Codan designated Dr. Lawrence Matta as an engineer and certified fire and explosion investigator. ABR argued that Dr. Matta was not qualified to testify as an expert witness about welding or hot work on a wind turbine generator because he had never testified in Court or been qualified as an expert witness at trial, did not have any welding licenses, never worked as a welder, and had no experience with wind turbine generators. The court denied ABR’s motion, finding that specialized degrees or licenses are not required to qualify as an expert. Dr. Matta is certified as a fire and explosion investigator by the National Association of Fire Investigators, had previously been involved with investigations involving welding and hot work as the cause or origin, and the extent of his specific training and knowledge about welding would go to the weight of the testimony and not its admissibility. The fact Dr. Matta did not have prior experience with wind turbine generators was irrelevant since his background on fire causation and welding would be within his experience and expertise to discuss fire prevention procedures for hot work on different objects or structures, be it a wind turbine generator or otherwise.
The court went on to also find that the basis of Dr. Matta’s testimony was sufficient where he personally inspected the part at issue and conducted testing on the foam insulation. He also reviewed deposition testimony from two individuals who were present when the fire began and reviewed documents produced in discovery.
ABR moved to exclude the plaintiff’s other expert Haskell Simpkins arguing his testimony was not based on sufficient facts and data. ABR argued Mr. Simpkins did not review depositions of any Suzlon Wind employees or documents which were inconsistent with Suzlon Wind’s position. The court found Mr. Simpkins’ testimony to be admissible and based on sufficient facts and data for his testimony that the defendants did not follow appropriate standards for hot work. His testimony was based on review of the National Fire Protection Association standards for hot work and fire prevention. ABR’s argument that Mr. Simpkins did not review sufficient facts or data goes to the weight of his opinion rather than the admissibility. ABR also complained that Mr. Simpkins’ calculations only showed a numerical result and that he did not show his work regarding his calculations in his report. The court found that as long as Mr. Simpkins’ methodology in calculating the values was of the type reasonably relied upon by experts in the field, it was irrelevant that he did not show his work as to how he arrived at the result.
ABR also contended Mr. Simpkins could not offer testimony on a letter between two parties at issue because it was “written in plain English” and no expert opinion was necessary. The court agreed that although experts had been permitted to testify about proper interpretation of contract terms, this was only when the contract language is ambiguous or involves a specialized term of art. The court found that “customary good practices and fire prevention procedures” was not alleged to be a specialized term of trade.
Mississippi Supreme Court Approves the Admission of Testimony by an Emergency Room Expert in a Bench Trial
The Supreme Court of Mississippi considered the motion to exclude expert opinion by Dr. William Truly in a wrongful death case involving treatment of the deceased at the University Medical Center, the defendant in this matter. The University Medical Center v. Martin, 994 So. 2d 740 (Miss. 2008).
The case was tried in a bench trial and testimony was offered by Dr. William Truly on emergency medicine and family medicine. UMC conducted voir dire and learned that although Dr. Truly graduated from medical school and was practicing in private practice, he admitted he had not worked in an emergency room since the late 1990s. At the time of his deposition he was anticipating to begin work as an emergency physician within one month thereafter. His current practice was as a family physician and he confirmed some patients have conditions that fall under the specialty of emergency medicine. The trial judge overruled UMC’s objections and allowed Dr. Truly’s testimony.
On appeal UMC asserted Dr. Truly was not qualified to testify as to the standard of care in emergency medicine because he was not an emergency physician, was not board-certified in emergency medicine, and had not worked in the emergency room in quite some time. UMC also argued that because Dr. Truly’s opinions differed from their own experts they must be unreliable.
The Supreme Court of Mississippi analyzed the factors under Daubert, and found that Dr. Truly’s testimony was admissible under Mississippi Rule of Evidence 702. Mississippi Rule of Evidence 702 sets out three requirements that were added after Daubert and Kumho Tire which include that the “testimony must be based on sufficient facts or data, the testimony must be the product of reliable principles and methods, and the witness must have reliably applied the principles and methods to the facts of the case”. The Supreme Court had also previously added that expert testimony is “presumptively admissible when relevant and reliable”. The Court went on to find Dr. Truly’s testimony was admissible under these standards, and also noted the Fifth Circuit Court of Appeals had found that most safeguards discussed in Daubert are not as essential in a case where the judge is the trier of facts, rather than a jury.
Robert G. Smith serves as the Regional Editor of Daubert Online, is a member of the Medical Liability and Health Care 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.
