Ergonomic Testimony Excluded Under FRE 702 In Product Design Litigation

After plaintiff amended his complaint to assert a negligent product design theory rather than negligent product installation theory, plaintiff's expert ergonomic witness was excluded from testifying as unqualified under FRE 702 due to admitted lack of training, education and experience in relation to product design, in Khoury v. Philips Medical Systems, __ F.3d __ (8th Cir. August 10, 2010) (No. 09-3919, 09-3965)

On the first of this month, the Federal Evidence Blog examined how a change in understanding of the applicable law of a case has implications for the evidence admitted at trial. In the case reported upon by the blog essay on September 1, the Ninth Circuit clarified that proximate cause was a necessary element for conviction of transporting illegal aliens resulting in death. Accordingly, the trial court erred by excluding evidence of whether administrative agency procedures on vehicle chases had been observed in the defendant's case, as any departure might have been an intervening cause of the turnover that caused the victim's deaths and so the defendant's actions would not satisfy the proximate cause requirement of the law. See United States v. Pineda-Doval, __ F.3d __ (9th Cir. August 10, 2010) (No. 08-10240). Today the Federal Evidence Blog examines a similar issue – from the Eighth Circuit – where the trial court's assessment of expert evidence relevant under one theory of the case becomes inadmissible under the plaintiff's amended theory of the case.

In the case, Dr. Khoury, the plaintiff, allegedly injured his arm while performing a coronary angiogram. He claimed that the injury occurred while he was moving a medical equipment monitoring device designed and installed by defendant Philips. After the plaintiff's state cause of action was removed to the federal district court, the plaintiff amended his complaint so that it "generally" alleged that the plaintiff had been injured due to the defendant's "design and assembly" of the monitor device. In pretrial proceedings, plaintiff's counsel clarified that the amended complaint alleged the "negligent installation" of the device, rather than its "negligent design." Khoury, __ F.3d at __.

Defendant Philips then filed a motion for summary judgment and a motion to exclude testimony by the plaintiff's expert witness, Dr. Andres - an ergonomic expert. The trial judge granted both motions. No matter how skilled the expert was on ergonomic questions, this did not qualify him to testify about medical device design defects. The judge explained that the plaintiff's expert “was an ergonomist … qualified to testify as to the amount of force and biomechanical stress Dr. Khoury suffered” but not “qualified to testify as an expert on the design” of the monitoring device itself because he was not “trained, experienced or educated in the design of medical devices or laboratories.” Having struck the plaintiff's expert, the court then granted summary judgment to the defendant because the plaintiff had no evidence, expert or otherwise, that would suggest there was an issue of fact as to design deficiencies of the product. The plaintiff appealed these determinations. Khoury, __ F.3d at __.

The Eighth Circuit affirmed the grant of summary judgment and exclusion of the ergonomic expert. In examining the plaintiff's claims before the district court, the circuit concluded that the question at issue in Khoury's case was whether the defendant's design of the monitoring system was "unreasonably dangerous." It affirmed the trial judge's finding to exclude the expert, and with it to grant summary judgment to the defendant in the case. According to the circuit:

"it is undisputed Dr. Andres has no training, education, or experience in the design of laboratories or of monitor banks and radiation shields. Dr. Andres is an ergonomist. Ergonomics is “[t]he scientific study of the efficiency of man in his working environment.” The district court did not abuse its discretion in forbidding Dr. Andres from testifying outside of his area of expertise and opining as to the proper design of Philips's [monitoring device]... On the contrary, we have reversed a district court for permitting an expert to testify outside of his field. Dr. Khoury does not claim, for example, that the single-track design [by the defendant] caused Dr. Khoury repetitive stress injuries because of an alleged ergonomic failing.

“In holding the district court did not abuse its discretion in finding Dr. Andres unqualified to render an opinion, we do not suggest Dr. Andres lacks ability or expertise as an ergonomist. The problem for this case is Dr. Andres has no training, education, or experience in the design of medical laboratories or of monitor banks and radiation shields."
Khoury, __ F.3d at __ (citing Oxford English Dictionary (Online ed.2010); Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 715-16 (8th Cir. 2001) (permitting a hydrologist to testify about safe warehousing practices, an area outside of his expertise, was erroneous); Kennedy v. Baxter Healthcare Corp., 348 F.3d 1073, 1074-75 (8th Cir. 2003) (per curiam) (excluding expert who was not a physician or toxicologist from opining as to “what makes a rubber glove safe or unsafe for allergy purposes or what level of proteins or allergens are necessary to achieve a safe level for allergy purposes”)).

The circuit noted that the trial judge had offered an additional ground for exclusion of the expert, but declined to address the matter. The trial judge had explained that even had the expert been qualified to testify, his testimony was unreliable:

“Dr. Andres's opinions were “questionable” because Dr. Andres never replicated the circumstances leading to Dr. Khoury's injury. Dr. Andres never tested a single-track design; never measured the amount of force needed to stop the RPS; never examined the RPS or articulating arm, apart from measuring the RPS's width; and never considered a potential alternate cause of Dr. Khoury's injury, namely, the nurse's failure to announce her intention to move the monitor bank. Dr. Khoury admitted in his deposition it was 'common practice' for the nurse to make such an announcement.”
Khoury, __ F.3d at __ .

The resolution of Khoury highlights that in focusing on expert evidence issues, concern should be directed not merely on the expert's qualifications, but whether the qualifications are relevant to the issue before the court. A change of theory in the case may render evidence that was admissible at one stage of the litigation not admissible at future stages.

Federal Rules of Evidence