Written by Brian A. Cafritz, Esq.
Earlier this month the Eastern District of Virginia released its opinion in Snider-Jefferson v. Amigo Mobility Int’l, Inc., 2016 U.S. Dist. LEXIS 109319, which reaffirmed that expert witnesses cannot simply opine on their own ideas about product safety, but must instead base their evaluations upon specific industry standards.
In Snider-Jefferson, a plaintiff at a Virginia Wal-Mart store was injured by another customer who was riding a motorized cart, when a sharp metal edge on the cart’s platform struck the plaintiff’s ankle. The plaintiff filed suit against Wal-Mart and the cart manufacturer, alleging that the cart had been defectively designed.
Specifically, plaintiff contended the cart platform needed a soft rubber edge or other protective guard to shield the cart from customers. In support of these theories, Plaintiff designated a mechanical engineer, Dr. Bawab, who inspected the cart and created a computer model of the accident. Dr. Bawab concluded that adding a rubber bumper to Wal-Mart’s carts would have been a simple and cost effective solution which would have greatly mitigated the risk of harm caused by Wal-Mart’s carts.
Defendant moved to exclude Dr. Bawab and sought summary judgment. Judge Lawrence Leonard of the USDC EDVA (Norfolk Division) granted the motion and dismissed the case. The Court noted that, “[i]n his report, Dr. Bawab did not consider any industry or government standards when assessing the cart’s design . . . . Dr. Bawab failed to perform the recommended [Underwriters Laboratory (“UL”) standard] sharpness testing on the cart’s edge, and Dr. Bawab never indicated whether UL standards required a rubber bumper.” Id. at *13. In depositions, Dr. Bawab conceded that he did not review any literature in the field, did not consider any relevant industry regarding the utility, the safety of carts of this nature, or any other standards. In addition, Dr. Bawab failed to properly consider whether the cart met consumers’ expectations. “Dr. Bawab did not compare the cart to competitors’ carts, did not consider published literature, and did not research the existence of other cart injuries or accidents.” Id. at *5. He further testified that he did not gather data about the carts in use or consider the “number or nature of incidents or injuries that have been reported in connection with the use of th[e] cart[s,]” or whether any other injuries had been reported. Id. at *12.
In explaining the dismissal, the Judge Leonard stressed that “Plaintiff cannot satisfy the elements for a prima facie case by demonstrating what could make the cart better, but instead must demonstrate how the cart’s design fell below a set standard.” Id. In Virginia, manufacturers are not always required to use the state of the art technology in their products. “Virginia law requires manufacturers to make reasonably safe products, [but] it does not require them to adopt the safest conceivable design.” Id. (quoting Redman v. John D. Brush & Co., 111 F.3d 1174, 1177 (4th Cir. 1997)). Highlighting the absence of the expert’s reliance on an accepted standard, Judge Leonard emphasized that experts simply cannot offer their own personal opinions on what is appropriate, and instead, must base opinions on recognized legal standards. Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir. 1993) (“Don’t we have to have more than just somebody saying, I am an industrial engineer and I have looked at this ladder, it is the only one I have really looked at for this purpose, but I don’t like it, there ought to be something else done to it?”)
Finally, Judge Leonard ruled that Dr. Bawab was not permitted to address the applicable standards governing cart safety in his rebuttal report. “An expert cannot bootstrap new opinions onto a rebuttal when those new opinions were available to the expert at the time of his initial disclosure, even if part of a rebuttal is well-founded.” 2016 U.S. Dist. LEXIS 109319 at *12. The rules do not “permit an expert to correct mistakes based on information that was available to the expert well in advance of the issuance of his report,” Id. (quoting Sloan Valve Co. v. Zurn Indus., Inc., No. 10 C 204, 2013 U.S. Dist. LEXIS 85897, 2013 WL 3147349, at *4 (N.D. Ill. June 19, 2013));
The final takeaway from Judge Leonard’s ruling is that expert cannot offer his own personal opinions on what practices he or she believes are best. The expert must define the standard and then measure the imperfection against the defined standard or reasonable consumer expectations. Further, the expert must address these standards in his initial report—he may not rely on rebuttal reports to supplement his earlier deficiencies.
If you have any questions about a retail or restaurant incident and how this ruling may impact your case, attorneys at KPM LAW are ready to talk to you about it.