08-CV-0779 Lemmerman v. Wal-Mart Stores, Inc.

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Evidence
Expert testimony; reliability

Where an expert witness conducted no experiments to support his conclusions, nor relied on any experiments of others, his testimony is not scientifically reliable and is inadmissible.

“Most troubling for the court is not so much what Mr. Schuck used to conclude
that dichlor was volatile when mixed with a small amount of water; rather, what
troubles the court is what the witness did not do in providing his expert opinion. Mr. Schuck did absolutely no testing on dichlor and what occurs when the substance is mixed with water. Moreover, the expert did not provide the court with any studies which employed such testing, nor can the expert cite to any literature, document, journal article, textbook, or any other study that indicates that mixing dichlor with water can produce a violent reaction. (DPFF ¶¶ 17-18, 34). It is ‘elementary’ that Mr. Schuck’s theory should have been submitted to testing, whether by him or by others in a study, as the essence of Lemmermann’s claim depends on what results from the combination of dichlor and water. Kirstein, 159 F.3d at 1069. Moreover, Schuck’s conclusions fail to satisfy other specific factors delineated in Daubert and the comments to the Federal Rules of Evidence, as Mr. Schuck’s theory has not been subject to peer review, there is no indication that the witness’ conclusions are generally accepted in the scientific community, and Mr. Schuck’s conclusions do not
even attempt to grapple with the most obvious alternative explanation for how the explosion occurred – namely, that a third substance contaminated Mrs.
Lemmermann’s dichlor and water mixture. The court must exclude Mr. Schuck’s
testimony, as an expert’s ultimate opinion ‘must be grounded in the scientific
process and may not be merely . . . unsupported conjecture.’ Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Moreover, the infirmities with Mr. Schuck’s testimony do not go to the weight of the evidence, but rather to the overall reliability of his conclusions, and, the court, serving as a gatekeeper against unreliable expert testimony, must exclude Mr. Schuck’s testimony.”

08-CV-0779 Lemmerman v. Wal-Mart Stores, Inc.

E.D.Wis., Stadtmueller, J.