WarningJust because an expert testifies, “these days I don’t do hazard analysis,” doesn’t relieve the court of its authority to review the expert’s relevant experience and education to make that determination.

In a recent product liability case, Plaintiff made a motion to exclude the expert testimony of Defendant’s product design and safety expert as to the adequacy of the warning that it placed on its aerial work platform, including whether a different warning would have prevented the incident at the center of the case.


The platform was too tall to be moved through doorways, so a user had to remove the pins securing the basket. Plaintiff was allegedly injured when he disengaged the pins to lower the basket, it swung down and struck him on the head. He argued that the platform had a defective design, and that Defendant provided an inadequate warning about the danger that resulted from the design.

Defendant’s expert has a bachelor’s degree in industrial design. He worked for the platform manufacturer for 20 years. Throughout his career, his responsibilities included product design and safety for aerial work platforms, including the platform model at issue here.

In this work, the expert had substantial practical experience applying the American National Standards Institute (ANSI) standard Z35.1–1972. He participated in committee work for ANSI, the Canadian Standards Association, and other organizations regarding aerial platform design and safety. The expert also served as a representative of the Elevating Work Platforms committee for the U.S. Technical Advisory Group and assisted with the publication of “several standards, including standards that apply directly to instructions and warnings.”

The defendant’s expert was involved in the design of the platform, and was responsible for the design and assessment of the warnings and user instructions, including the visibility and legibility of the warning in question. Based on his experience and training, he “professionally determined that the warning was adequate to convey the information needed for safe operation and that it was consistent with industry practice at that time.”  He was prepared to testify in accordance with that determination and further testify that the incident would not have occurred if Plaintiff had followed the warning.

With all this relevant background, one would think there would be no dispute over the expert’s qualifications. However, when Plaintiffs deposed the defendant’s, he testified that he wasn’t a professional engineer and wasn’t licensed to practice engineering. He also stated that he worked in product safety at the time and didn’t routinely engage in “hazard analysis.” When asked if the subject warning complied with ANSI standards for color and shape of the warning, the expert testified that it didn’t, but that the warning provided important information to the operator about operation of the machine and its uses and was “adequate and capable of conveying the information even though it’s not specifically the layout described in the standard”

Plaintiff specifically jumped on his statements, “these days I don’t do hazard analysis,” and, “I didn’t say I don’t do hazard analysis.”

United States Magistrate Judge John C. Nivison of the District Court of Maine quoted the First Circuit when he wrote that “Federal Rule of Evidence 702 assigns to the district court ‘the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” The proponent of the expert testimony has the burden of showing that the testimony has “a reliable foundation and is calibrated to assist the finder of fact, but need not establish that the expert’s opinion is correct.” Plaintiffs sought the exclusion of the defendant’s proposed opinion testimony that the warning sign was adequate and that a better or different sign would not have prevented the accident because he (1) wasn’t qualified to serve as an expert and (2) hadn’t developed an expert opinion through the application of any specialized knowledge.

Judge Nivison explained that the court has broad discretionary powers in deciding whether the proposed expert is qualified by “knowledge, skill, experience, training, or education.” Where it is apparent that the witness’s testimony concerns “scientific, technical, or other specialized knowledge,” the Court must assess whether the testimony would prove helpful to the jury based on its reliability and its fit with the facts and issues at hand. In effect, this is a case-by-case determination.

Plaintiffs acknowledged that experience was a valid qualification for expert testimony, but they still challenged the expert’s qualifications because he didn’t have an engineering degree and license, provided an uncertain response his deposition as to whether he considered himself an expert, and was inconsistent in his responses regarding the hazard analysis process.

Judge Nivison’s held that the defendant expert’s qualifications were adequate to allow him to testify about the warning provided on work platform. He had years’ of experience applying and assessing warnings applied to the manufacturer’s products and had conducted substantial work of these platforms. Also, he was familiar with warning/signage standards. The judge said he had the requisite expertise—from his education, his long relevant work history, his intimate knowledge of the platform operation, and his related professional activities—to testify as to the proffered opinions. Based on this, the Court denied Plaintiff’s Motion to Exclude Expert Testimony.

By: Kurt Mattson, J.D., LLM

20+ Years of Experience in the Legal Industry

Veilleux v. Genie Industries, Not Reported in F.Supp.2d, 2014 WL 2514807 (D.Me. June 4, 2014).