For over two decades, dating back to Daubert and the ensuing amendments to Rule 702, federal district courts have been charged to act “as gatekeepers to exclude unreliable expert testimony.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendments. However, some courts have not embraced that role, letting jurors weigh questions about an expert’s qualifications or methodology as though they go to credibility rather than admissibility. Indeed, the Advisory Committee on Evidence Rules proposed an amendment to Rule 702 to address the “pervasive problem” of courts holding that issues of admissibility are questions “of weight for the jury.” See, Sardis v. Overhead Door Corp., 10 F.4th 268, 282-84 (4th Cir. 2021). (quoting Advisory Comm. on Evidence Rules, Agenda for Committee Meeting (Apr. 30, 2021)).
A recent decision out of the Northern District of Illinois, however, provides an excellent example of a court discharging its duty to preclude inadmissible expert opinions. The Plaintiff in Pessman v. Trek Bicycle Corporation, 2021 WL 5769530 (N.D. Ill. Dec. 6, 2021) was injured in a bicycle accident. Plaintiff’s engineering expert opined that the cause of the accident was a crack in the carbon fiber frame of Plaintiff’s Trek bicycle attributable to a design defect. The engineer claimed that carbon fiber frames are prone to cracking and that the crack was mistaken for simple paint chipping by a dealer who had inspected the bicycle several days before the accident, allegedly due to Trek’s failure to train the dealer properly.
Trek moved to exclude Plaintiff’s engineering expert as unqualified to offer these opinions, arguing that he had no experience with bicycles or with carbon fiber. Plaintiff argued that the expert’s training and experience in mechanical engineering generally, as well as his experience with exercise equipment other than bicycles, qualified him to opine on the cause of the accident. The court, however, emphasized that an expert must “have more than general knowledge in the subject area.” The expert’s general knowledge of mechanical engineering simply was not enough to overcome his lack of expertise in bicycle frames or carbon fiber products. Although the court acknowledged that issues of credibility would be for the jury to decide, it concluded that Plaintiff simply had not met his threshold burden of establishing that the expert was qualified to offer his causation opinion. “To hold otherwise would be to abandon this Court’s responsibility as a gatekeeper.”
Trek also argued that the expert’s opinions were unreliable because they were not based on testing, experimentation, or literature. The court did not find the lack of testing alone to be dispositive, but it was aggravated by the expert’s failure to analyze any relevant and reliable scientific literature. And, although Trek conceded in its owner’s manual that carbon fiber frames are prone to cracking, the expert’s opinion that the crack in Plaintiff’s bicycle frame widened over time until it failed and caused an accident amounted to nothing more than “a reasonable layperson’s hypothesis.” The expert also relied on Trek’s recall of an unrelated line of bicycles, but failed to explain how the recall supported an inference of defect in Plaintiff’s model bicycle. Accordingly, the court excluded the expert’s opinions for lack of reliable methodology as well as for his lack of relevant qualifications.
Having excluded Plaintiff’s causation expert, the court turned to Trek’s motion for summary judgment. The court readily granted summary judgment on Plaintiff’s strict liability and negligent design defect claims, noting that Plaintiff conceded the former and had failed to offer an expert on the latter. Plaintiff’s negligent failure to warn and instruct claim fared no better, as Plaintiff had failed to identify any inadequacy in Trek’s warnings and the owner’s manual had warned that paint discoloration and other changes in appearance “can indicate the presence of a crack.”
The court also granted summary judgment to Trek on Plaintiff’s claim that Trek had negligently failed to train the dealer who inspected his bicycle prior to the accident, finding the existence of a duty to train questionable, and Plaintiff had presented no evidence it was breached. It also rejected Plaintiff’s claim that Trek was vicariously liable for the dealer’s alleged negligent maintenance of the bicycle.
However, the court denied summary judgment on Plaintiff’s claims for breach of implied warranty of merchantability and breach of express warranty. Although Plaintiff did not offer an expert on the issue of causation, the court found that jurors could conclude that a crack in the frame had caused the accident: Trek’s owner’s manual conceded that cracks can develop in the frame, and other explanations for the accident could be excluded if jurors accepted a combination of eyewitness testimony and Trek’s concession that the dealer’s maintenance did not cause a crack. Thus, it was for the jury to decide whether the bicycle was fit for its ordinary purpose. Likewise, the court held that representations on Trek’s website of “an amazing warranty against defects in materials and workmanship” raised a question of fact as to the existence of an express warranty. Because there was sufficient evidence for a jury to exclude causes of the accident other than a cracked frame, the court denied summary judgment.
Though the court’s warranty analysis appeared to apply — perhaps misapply — the doctrine of res ipsa loquitur, it never explicitly invoked the doctrine.
That aside, Pessman illustrates a court faithfully fulfilling the “gatekeeper” role contemplated by Daubert and the 2000 Amendments to Rule 702. The court acknowledged that issues of credibility are for a jury to decide but also that it had an obligation to first evaluate the expert’s qualifications and methodology and to ensure that they satisfy the requirements of Rule 702. As the court recognized, failure to do so “would be to abandon [a court’s] responsibility as a gatekeeper.”