The testimony of an expert witness who conducted no experiments to prove his theory of liability is unreliable and must be excluded.
On May 18, U.S. District Court Judge J.P. Stadtmueller granted summary judgment in favor of a manufacturer of a product that kills algae in swimming pools, concluding, “It is ‘elementary’ that [the expert’s] theory should have been submitted to testing, whether by him or by others in a study.”
The court also held that, without experience in designing warning labels, an expert is unqualified to testify in a failure to warn action.
The manufacturer, Arch Chemicals, Inc., and a retailer, Wal-Mart Stores, Inc., were sued in state court by Traci L. Lemmerman, alleging negligence and strict liability.
Lemmerman claimed that when she mixed Arch’s product, “Sock It,” with a gallon of water, the solution exploded and caused her respiratory problems.
The defendants removed the case to federal court and moved for summary judgment, arguing that neither of Lemmerman’s expert witnesses could testify. Judge Stadtmueller agreed and granted the motion.
The first witness was Michael D. Schuck, called to testify that Arch was negligent in failing to warn about the product’s propensity to explode when mixed in a small volume of water.
The court first held that Schuck is qualified to testify, even if he is not the most qualified person to do so. Schuck has degrees in chemical engineering and environmental engineering, and has experience working in the chemical industry.
The defendants argued that he is not qualified because he had conducted no tests on the products, but the court found this inapposite to the question whether he is qualified to testify about chemical reactions.
However, the court found that Schuck is unqualified to testify about the need for a warning label that Sock It may explode when mixed in a small volume of water.
Judge Stadtmueller wrote, “While Mr. Schuck’s education and job experience reflects considerable expertise in environmental engineering and superior knowledge of the field of chemistry, it shows no similar expertise in the area of warnings.”
Finally, the court found that, while Schuck’s failure to conduct experiments does not render him unqualified, it does render his methodology unreliable, and therefore, his testimony must be excluded in its entirety.
Stadtmueller wrote, “Mr. Schuck did absolutely no testing on dichlor [the active ingredient in Sock It] 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.”
The court also held that Lemmerman’s other expert witness, Dr. Rula al-Saghir, could not testify on whether the explosion caused injury to her, for several reasons. The court noted that Lemmermann failed to disclose her history of breathing problems before the incident, among other problems with the testimony.
Absent any expert testimony that Arch breached any duty to Lemmerman, or that it caused any injury to her, the court granted summary judgment in favor of Arch and Wal-Mart.
The opinion is noteworthy for several reasons.
First, it highlights the radical difference between Wisconsin and federal courts regarding qualifications to testify as an expert in a failure to warn case.
Here, the court held that Schuck was unqualified to testify on the need for a warning, because he has no training or experience in the design of warning labels.
Had this case remained in state court, Schuck would indisputably be qualified to testify.
In Tanner v. Shoupe, 228 Wis.2d 357, 596 N.W.2d 805 (Ct.App.1999), the plaintiff sued the manufacturer of a car battery that exploded. For an expert witness, he named a mechanic who had worked for over 30 years at various dealerships and had taught auto mechanics at technical colleges.
The Wisconsin Court of Appeals acknowledged, “He has no experience or training in creating warnings for batteries and is not aware of the applicable federal regulations regarding the warnings on batteries.”
Nevertheless, the court held he could testify. “[A] witness need not have expertise in writing warnings in order to testify on the adequacy of a warning on a product if the witness, through training or experience, has sufficient knowledge on how the product works, how it is used, and the dangers of the product.”
A second interesting aspect of the opinion is the relevance of the fact that an expert has conducted no experiments on the product involved.
The court’s opinion makes clear that this fact is relevant only to whether the testimony is reliable, not whether the expert is qualified.
Finally, the opinion contains a footnote regarding summary judgment motions that is important to all attorneys, regardless of the type of action.
Addressing the plaintiff’s failure to provide an excerpt of Schuck’s deposition testimony, even though the findings of fact reference those pages, Judge Stadtmueller made the following recommendation:
“[T]his occurrence highlights the utter inefficiency of the protocol followed by most attorneys when filing for summary judgment. Perhaps filing numerous excerpts from a single person’s deposition testimony made sense when courts relied on paper documents. However, the existence of electronic filing renders such practice archaic. If the parties are going to be citing to various portions of a witness’ deposition, then instead of requiring the court to engage in an archeological dig to find whichever excerpt it needs at any given time, and instead of risking not providing the court with the relevant excerpt, the parties should have simply filed the entire deposition in one place and then both cite to that one filing whenever referring to the witness’ deposition.”