Expert WitnessesIntroduction:

In 2010, a pilot’s airplane fell from the sky, resulting in a host of injuries to the pilot that ultimately left him wheelchair-bound. See, e.g., Mary Divine[1], “Pilot who crashed at Minnesota airport denied $27M verdict,” Crookston Times, Sep. 26, 2017. In 2011, the National Transportation Safety Board (NTSB) ruled that the crash occurred because of the pilot’s errors. See id. However, at trial in early 2016, the jury ruled in the pilot’s favor and awarded him $27.7 million. See id.; see also Barbara L. Jones, “Extreme injuries result in extreme verdict,” Minnesota Lawyer, Mar. 3, 2016. Only six months later, the judge overseeing the trial ordered the pilot’s complaint to be dismissed with prejudice and the award vacated, based on the court’s determination that the expert witness testimony involved was insufficient to sustain the verdict. See Mary Divine, supra. This article examines the issues surrounding the expert witness testimony in the case and discusses what attorneys may wish to do to avoid the pitfalls that occurred. The district court’s decision is currently under appeal. See id.

Discussion:

The crash that gave rise to the litigation was a very serious one, resulting in major injuries to the pilot plaintiff and in a surgeon telling the plaintiff that the patient’s knee would likely need to be amputated. See id. Given that the pilot was a former athlete and Olympic hopeful, his life was dramatically changed by the physical injuries resulting from the accident. See id. According to the plaintiff, the first responders at the site found that “[m]etal from the plane scraped all the skin off the bone of his left leg. … They found the ankle bone of his right foot in the mud alongside the plane, and they took it and cleaned it and pinned it in place through the heel.” Id. The patient reportedly had over fifty surgeries, dental reconstruction, and two craniotomies. See Barbara L.  Jones, supra; see id. According to one reporter, “Doctors estimate he lost about 25 percent of his brain’s frontal lobe,” and the brain injuries were substantial. Id. In addition, the plaintiff was riddled with involuntary muscle spasms and experienced mental health problems, such as severe depression. See Mary Divine, supra.

Although the NTSB blamed the incident on pilot error, that report was not permitted to be introduced at the trial. See id. Instead, the jury relied upon other evidence and ruled in the plaintiff’s favor under the “design and defect” theory—that the plane’s manufacturer had committed negligence in making the pump, which “failed to deliver enough fuel to the engine so the Glasair II RG single engine plane lost power right after takeoff as it began to climb. The valves did not give enough flow pressure to the fuel.” Barbara L. Jones, supra.

The trial court judge disagreed with the jury verdict, based upon the judge’s assessment of the primary expert witness’s testimony, which had been the basis for finding the mechanical errors and negligence to be on the manufacturer’s part. See, e.g., Mary Divine, “Pilot who crashed at Lake Elmo Airport in 2010 denied $27M verdict,” Twin Cities Pioneer Press, Sep. 24, 2017. According to the judge, the defendants had raised several valid objections to the expert’s testimony, among them that “the expert witness admitted he had never before evaluated or tested an engine-driven fuel pump like the one in Kedrowski’s airplane; the expert witness offered no scientifically reliable explanation for why the fuel pump had supplied fuel to the airplane’s engine ‘for 312 hours without any reported problems on take-off, during climb or in the air’; and the expert said the airplane was capable of flight ‘despite the existence of defects in the fuel pump.’” Id.

This case is certainly far from over, as the plaintiff’s attorneys have filed an appeal. See Mary Divine-1, supra. However, as expert witnesses are used in the vast majority of cases, it is important for attorneys to understand how the result in this case could be different and how the principles that might make a difference are ones that apply universally and are of use in any litigation in which experts play a role.

Moreover, the case at hand highlights some important considerations and strategies for litigators when utilizing the opinions and testimony of expert witnesses. For example, if possible, it would be beneficial for the expert to have had prior experience evaluating and testing a pump of the type that was used in the airplane at issue. Previous experience with a particular mechanical device boosts an expert’s credibility and can result in a more successful outcome for the attorney and client who retained that witness. Moreover, an expert without such experience may, in some courts (as in this case), be considered unreliable by a gatekeeping judge and therefore be excluded from consideration by a jury. Even if a judge did opt to let such testimony through and allow the jury to make the ultimate decision as to the weight and reliability of the testimony, some jurors may not feel that that expert witness has the requisite credibility to render a valid opinion. At a minimum, the expert’s testimony is open to attack from opposing counsel, and such objections may be successful at times, as they were in this particular case.

Additionally, it is well-known that every court, whether federal or state, has certain standards and criteria for scientific expert testimony that require a certain level of reliability. The federal courts use the famous Daubert Rule, coupled with the updates to Daubert from Kumho Tire. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). While many states have adopted the Daubert-Kumho Tire Test, others have not. A handful of states still rely upon some version of the previous federal standard, the Frye Rule. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Other states have modified versions of Daubert or Frye or their own standards, but every state has a set of requirements for expert testimony of a scientific nature, and if those conditions are not met, trial court judges have the right and, arguably, the responsibility to exclude expert witness testimony. Every time they are involved in litigation, attorneys should be intimately familiar with the standards to which their experts will be held and be prepared to meet any challenges made by opposing counsel. In cases involving scientific evidence, litigators should know the types of questions that might be asked of their experts’ theories and be ready to meet those potential objections in advance.

Other factors that attorneys may wish to consider when relying on expert testimony include whether the retained expert’s opinion is one that the community in that field appears to concur with, as scientific consensus is one standard that nearly every jurisdiction’s tests consider, and if it exists, it can be invaluable in building the credibility of a given expert’s opinion and testimony. On the other hand, an expert opinion that lacks scientific consensus or is considered to be a departure from the generally-accepted beliefs in a field may be deemed invalid by a judge or jury. Legal practitioners may also wish to consider retaining multiple experts who are in agreement with one another on critical issues, such as a design and defect theory. In that way, if one expert’s evidence is considered insufficient, the existence of supporting testimony may make that issue moot, and the harm from a judge or jury’s belief that a single witness’s opinion is inadequate, will be mitigated, if not eliminated. A judge may be less likely to exclude or downplay expert witness evidence in cases where more than one individual makes the same conclusions.

To the greatest extent possible, attorneys should strive to locate the experts who are known to be the best in a given field and should retain them as quickly as possible to prevent them from being hired by their opponents. The earlier experts are retained, the more time lawyers have to get acquainted with witnesses and their theories. Early retention of experts also provides attorneys with the opportunity to thoroughly investigate their experts; build upon witnesses’ strengths and work to mitigate their weaknesses; and hold trial runs to consider and prepare their experts for depositions, objections, Daubert or Daubert-like hearings, and trial. Attorneys can carefully investigate their prospective experts by examining the witness’s curriculum vitae, references from the expert’s peers, the individual’s publications (and the reception of those publications, as well as publications that are written in response to that expert’s theories), prior experience as an expert witness, and more.

Conclusion:

The case at hand is by no means a simple one, as it entailed some four years of investigation to determine who, if anyone, was at fault for the resulting plane crash. See Barbara L. Jones, supra. The plaintiff and his attorneys were reportedly shocked by the recent set of developments, in which the district court vacated the verdict and dismissed the complaint. See Mary Divine-1, supra. Regardless of what happens on appeal or the fact that the trial court outcome may be unusual, attorneys should attempt to prevent and guard against such occurrences to the greatest extent possible. Many savvy litigators have explained that the best lawyers do not merely prepare for the probable outcomes of a case but for every possible outcome. Indeed, few attorneys would likely anticipate that in a case where a favorable verdict was rendered, the presiding judge would override that verdict some six months later. However, by implementing some or all of the guidelines discussed herein, litigators can decrease even the slim possibility of what transpired in this case, and they can confidently rely upon their expert witnesses and the work they have done with those witnesses prior to and during a trial to see them through difficult situations.