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"Hired Gun" Expert Testimony Still Has To Be The Right Caliber To Hit The Mark of Admissibility

April 5, 2024

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It is all too common for a case to get bogged down in a battle of the experts. Expert testimony can make or break a theory of recover or a defensive position; so much so that there are rules that have been put in place to ensure that an expert’s testimony is worthwhile and meets appropriate standards so as to be admissible at trial. A recent diversity action filed in the Eastern District of Pennsylvania of the federal courts examined this issue.

Plaintiff Keith Slatowski (“K. Slatowski”) and his wife Bianca Cemini Slatowski (“B. Slatowski”) (collectively the “Slatowskis”) sued Sig Sauer, Inc. (“Sig Sauer”) a firearms manufacturer, as the manufacturer of a P320 pistol that the Slatowskis alleged unintentionally fired and injured K. Slatowski. Keith Slatowski & Bianca Cemini Slatowski v. Sig Sauer, Inc., No. CV 21-729-RBS, 2024 WL 1078198, at 1 (E.D. Pa. Mar. 12, 2024). The Slatowski’s action alleged “seven causes of action against Sig Sauer: strict product liability (count I); negligence (count II), breach of the implied warranty of merchantability (count III); breach of express warranty (count IV); negligent infliction of emotional distress (count V); intentional infliction of emotional distress (count VI); and loss of consortium (count VII).” Id at 2.

Sig Sauer thereafter filed a motion for summary judgment. Id. Sig Sauer argued “that Plaintiffs cannot establish their defective design product liability claim because the expert testimony they have offered to prove causation is inadmissible and unreliable.” Id. at 1. Specifically, Sig Sauer argued “Sig Sauer argues that expert testimony is generally required to prove causation when a design defect is alleged, and a ‘plaintiff in a complex design case cannot establish causation when the district court excludes his expert from offering causation opinions or testimony at trial.’” Id. at 3 (quoting Sig Sauer’s motion). In opposition to Sig Sauer’s motion, the Slatowskis argued that causation should be submitted to a jury as a factual question and that expert testimony is not required when a matter “under consideration is simple, and a jury will be able to rely on ‘a common understanding of how pulling on two different items, one without a safety interlock, and one with a safety interlock, can have two widely different results’ to establish causation.” Id. (quoting the Slatowski’s opposition).

The court came to its decision after a review of Federal Rule of Evidence 702 which governs the applicable law on expert testimony admissibility. The court also noted that expert opinions can be “quite misleading because of the difficulty in evaluating it.” Id. at*2. Also, that the “Federal Rule of Evidence 702 contains a ‘trilogy’ of requirements: ‘qualification, reliability and fit.’” Id. at *3 (citing Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003)).

For the qualification requirement experts must “possess specialized expertise” which “has been interpreted liberally, and ‘a broad range of knowledge, skills, and training’ may qualify someone as an expert. Id. In addition to recounting the eight (8) factors a district court must evaluate with regard to reliability of an expert, the court also stated that expert reliability requires that the expert testimony “be based on the methods and procedures of science rather than on subjective belief or unsupported speculation; and the expert must have good grounds for his or her opinion.” Id. Finally, the court relayed that to “satisfy the fit requirement, ‘testimony must be relevant for the purpose of the case and must assist the trier of fact.’” Id. With regard to defective design of a product, the court stated that under Pennsylvania law to prevail on a claim of defective design in a product liability action, a plaintiff must prove (1) that the product was defective, (2) that the defect existed when the product left the hands of the defendant, and (3) that the defect caused the harm. Id.

In reaching its decision, the court also detailed the Slatowski’s expert’s opinion, including the acknowledgment that “he had limited information as to how the intentional discharge in this case occurred.” Id. at 5. Further, the Slatowski’s expert “recognized that he does not know whether [K.] Slatowski’s finger or a foreign object actuated the trigger” “did not know what holster the pistol was in when it discharged” and “concluded that ‘with the absence of any manual safeties on that P320, somehow the trigger was actuated by a finger [or] by something that caused that pistol to fire,” but qualified “the basis of his opinion: ‘That’s the only opinion I can really afford because I wasn’t there. I didn’t see it.’” Id. The Slatowski’s expert offered various opinions on the issue. Id. at 6. Ultimately, however, because Sig Sauer argued that the Slatowski’s opinion was speculative “ipse dixit” and that the Slatowski’s expert had “not provided a basis for his conclusion….” Id.

The court agreed with Sig Sauer and held that the Slatowski’s expert’s testimony was inadmissible under Rule 702 and Daubert. Id. In coming to its decision the court stated that “reports that ‘simply describe[ ] reported phenomena ... and do not investigate or explain the mechanism of causation’ are not reliable scientific evidence of causation.” Id. (quoting Casey v. Ohio Med. Prods., 877 F. Supp. 1380, 1385 (N.D. Cal. 1995)). Thus, because the Slatowski’s expert had “described the features of a P320 pistol and the nature of various manual safety mechanisms” but had not “provided a methodology, reasoning or support to explain why or how a tabbed trigger would have prevented the unintentional discharge” of the pistol, the court concluded that there had not been any “discernible methodology” or that the Slatowski’s expert had “shown that his hypothesis was testable” or that the expert’s “analysis is generally accepted or subject to peer review.” Id. at 7 (internal citations and quotations omitted). A similar analysis was provided by the court as to a second expert’s testimony on behalf of the Slatowskis. Id. at 8.

The upshot of the above is that while it is often necessary to hire an expert to opine on a case’s circumstances in order to have a chance at prosecuting a claim or defending one, doing so is purely a waste of resources when the expert does not properly address the requirements for that expert’s opinion to be admissible at trial. Parties cannot rely on the mere fact that an expert draws the conclusion that might be supportive of their arguments—the expert needs to connect all of the dots. Facts and theories must be testable and tested with discernible methodology, conclusions must be drawn from the generated data, and any opinions must have a basis in the above. Failure to do so could just result in the expert’s testimony being tossed out and the case being lost, so keep the expert testimony requirements in mind as you set your sights on trial.

Keith Slatowski & Bianca Cemini Slatowski v. Sig Sauer, Inc.
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