When a Product Expert Has No Experience with Product Allegedly Causing Fire: A Recent Exclusion and Considerations

An Illinois federal district judge recently excluded certain testimony offered by a plaintiff’s expert in a product liability case. The ruling offers an opportunity to stay abreast of recent expert witness rulings and the viability of an argument routinely used by the defense — that the plaintiff’s expert lacks any experience with the specific product that allegedly caused the fire. Although a common argument, it can give rise to a number of case-specific considerations.

The Case

The recent case of Ostrinsky v. Black & Decker (U.S.), Inc., et. al, Case No. 15 C 1545 (N.D. IL, November 16, 2016) is instructive on this issue. In Ostrinksy, it was alleged that the decedent died when a toaster made by Black and Decker (B&D) allegedly failed to pop up bagel slices and started a fire. In this product liability action, B&D sought to bar certain testimony of plaintiff’s expert witness.

Specifically, the plaintiff’s expert opined that: (1) B&D failed to follow a reasonable standard of care in the design of the toaster; (2) that it was unreasonable for B&D to design a toaster that would indefinitely heat food to the point of combustion; (3) that providing a design that would have prevented the fire would not have imposed a significant cost to B&D; and (4) that the toaster manual failed to adequately warn that the toaster could fail.

The Court’s Analysis

With respect to the design opinions, B&D first argued that the plaintiff’s expert was not qualified to render them as he lacked training regarding toaster design and of the toaster industry. The court did not agree with B&D’s argument. According to the court, “an expert is not required to have such a narrow focus in training that [deals] specifically with the type of product at issue.” The court further explained that nor did the plaintiff’s expert need to have training and experience in the area of design of household products. By way of example, the court noted that had the plaintiff’s expert worked in vacuum cleaner design, that would not have made him any more qualified to render an opinion on toasters. According to the court, although a general degree in electrical engineering may not be enough to render an opinion on the design of a toaster causing a fire, the plaintiff’s expert had more than a general education. In this regard, the court cited to the plaintiff’s expert’s training in electrical engineering and electrical safety, and his experience with fire investigations. As gatekeeper, the court found this sufficient to qualify the plaintiff’s expert to opine that a negligent design caused the fire. Deficiencies in the expert’s training were to be left to cross-examination by B&D.

With respect to the plaintiff’s expert’s opinions as to alternative design, the court agreed the plaintiff’s expert was unqualified as he lacked sufficient knowledge of the toaster industry and design to render such an opinion. As for warnings, the court noted that this topic delved far beyond the plaintiff’s expert’s training and education. As such, the court barred him from offering these opinions.

Next, B&D argued the plaintiff’s expert’s design opinions were not reliable. Specifically, B&D criticized the expert for working backwards from the fire, for failing to conduct testing on the same or similar toaster and same type bagel. B&D further pointed out that when its expert tested the toaster under the plaintiff’s expert’s theory, no fire started. Again, rather than barring these opinions, the court found that B&D’s arguments went to the weight of the opinions rather than their reliability.

As for the reliability of the plaintiff’s experts opinions as to alternative design and warning, they were also barred because the expert offered little more than speculation as to the viability of his proposed design and failed to provide specific written designs or prototypes. Nor did the expert offer any evidence showing that he conducted testing of his proposed warning. Nor did he offer specific language of an alternative warning. According to the court, an expert “cannot simply speculate in the abstract that an alternative warning should have been included in the owner’s manual.” As such, the court found that these opinions were not sufficiently reliable.

Lesson Learned?

Consistent with the many considerations taken into account when challenging an expert’s testimony, the defense must be aware of the distinction between the expert opinion that is non-admissible versus deficiencies in the opinion that are the subject of cross-examination. This opinion serves as a reminder that careful attention is warranted when contemplating whether to challenge an expert’s testimony based on lack of qualifications and reliability.

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