Court excluded the testimony of Civil Engineering Expert Witness citing lack of baseline qualifications and unsupported alternative design theory

Court excluded the testimony of Civil Engineering Expert Witness citing lack of baseline qualifications and unsupported alternative design theory

Plaintiff Jorge Martins brought a products liability action against Defendants, The Sherwin-Williams Company (Sherwin-Williams) and Anixter Inc.The Plaintiff, a welder and mechanic employed at a power plant, suffered significant injuries, including the loss of his right eye, when a can of aerosol spray-paint primer exploded in his face while he was painting a fabricated steel piece. The Plaintiff initiated legal proceedings against Sherwin-Williams, the paint can manufacturer, and Anixter, Inc., the distributor, asserting claims of strict products liability, negligence, and breach of implied warranty. The Plaintiff contended that the paint can was defectively designed or manufactured and lacked adequate warnings. In response, Sherwin-Williams argued that the Plaintiff had mistreated the can by striking it against a table.

The Plaintiff engaged Dale Cagwin as an expert engineer to provide insights on both design defect and failure-to-warn aspects of the case. Cagwin advanced the “failure-by-shaking” theory, asserting that the can’s dangerous and unreasonable design, characterized by a necked-in design and the use of double-reduced steel, led to its failure when shaken, ultimately causing the Plaintiff’s injury. According to Cagwin, the can’s design, considering the can’s circumference gradually narrows prior to its connection to the top and bottom portions of the can, increased its vulnerability to explosion during shaking, resulting in the harm suffered by the Plaintiff. Cagwin supported his opinion by referencing a 2011 report by Michael Fox (the “Fox report”), which concluded that cans made of single-reduced steel exhibited greater resistance to rupturing when dropped compared to those made of double-reduced steel.

Furthermore, Cagwin expressed the opinion that the warning label on the paint can was inadequate and failed to prevent the Plaintiff’s injury. According to him, the deficient warning label rendered the can defective and unreasonably dangerous, constituting an additional factor contributing to the Plaintiff’s injuries. 

Defendants moved to exclude Cagwin’s testimony on the grounds that he was unqualified and his opinions were unreliable. 

Civil Engineering Expert Witness

Dale J. Cagwin holds an Associate of Applied Science degree in Civil Engineering from Mohawk Valley Community College. Cagwin specializes in areas such as fire protection engineering, heating, ventilation, and air conditioning (“HVAC systems”), plumbing systems, wastewater treatment, compressed air systems, and industrial process systems. Cagwin is currently an Associate at Robson Forensic, Inc. and Fournier Robson & Associates, LLC. In this role, he provides investigations, analysis, reports, and testimony regarding failures and accidents involving mechanical systems and products. He also works to technically assist contractors and owners related to HVAC, plumbing, water treatment, and wastewater treatment systems.

Discussions by the Court

The Defendants contended that Cagwin lacked the qualifications to offer opinions on the issues outlined in his report. They argued that his academic and professional background, with a degree in civil engineering rather than mechanical engineering, did not align with the pertinent aspects of aerosol can design. The Defendants further asserted that Cagwin’s expertise in HVAC, plumbing, and fire protection was irrelevant to the design of aerosol cans as consumer products. Additionally, the Defendants highlighted Cagwin’s absence of educational and professional experience in the realm of warning labels on consumer products.

The Plaintiff responded by asserting that the Defendants were subjecting Cagwin to an “overly narrow test of his own qualifications.” The Plaintiff urged the Court to evaluate whether Cagwin’s “general engineering experience” was sufficient to qualify him to testify in a field where he may lack extensive direct experience. Additionally, the Plaintiff contended that the fact that Cagwin had not personally designed a spray-paint can should impact the weight rather than the admissibility of his testimony. The Plaintiff argued that Defendants had the opportunity to cross-examine Cagwin during the trial to scrutinize the extent of his qualifications.

The Plaintiff failed to address and counter the main point of the Defendants’ argument, which centered on the perceived lack of relevance between Cagwin’s educational and professional backgrounds and the subject matter he intended to testify about. The Plaintiff incorrectly asserted that the deficiencies in Cagwin’s experience only affected the weight of his testimony, not its admissibility. However, the Court noted that determining whether a witness possesses the necessary qualifications to testify on the subject matter in question is a matter of admissibility, not weight, as established in Hilaire v. DeWalt Indus. Tool Co., 54 F. Supp. 3d 223 (E.D.N.Y. 2014).

The assertion is made that Cagwin lacked the necessary qualifications to testify about the design of spray-paint cans. This conclusion is drawn from an examination of Cagwin’s overall experience and knowledge, considering both education and employment history. Notably, Cagwin acknowledged during his deposition that the design of aerosol cans fall within the realm of mechanical engineering, a field different from his degree in civil engineering. The absence of specific education is considered, but typically such gaps should be compensated by relevant professional or practical experience, which appears to be lacking in this case. The argument questions how Cagwin’s expertise in the broad category of “pressure vessels” qualifies him to opine on spray-paint can design, and the Plaintiff’s brief is criticized for not establishing the analogy between purported “pressure vessels” like vacuum cleaners, tires, and blimps and the aerosol can in question. Furthermore, during his deposition, Cagwin reportedly admitted that the pressure vessels he listed were structurally distinct from the aerosol can at issue in this case.

The argument contends that Cagwin is not qualified to testify about the adequacy of the label on the relevant spray-paint can. Aside from his admission during deposition that he lacks expertise in evaluating the sufficiency of consumer product warning labels, Cagwin’s lack of formal education or training specifically related to warning labels is highlighted. His only professional experience with warning labels is noted to be associated with his employment at a gas heat equipment company, where he explained hazards to employees responsible for designing the products’ warning labels. This experience is deemed too distant from warning labels to meet the “specialized knowledge” criteria set by Rule 702 and Daubert. The Plaintiff’s counterargument, stating the Plaintiff’s awareness of indicated dangers on the label, is deemed insufficient. Consequently, it is concluded by the Court that Cagwin lacks the necessary “scientific, technical, or otherwise specialized knowledge” required to serve as an expert witness, particularly in regards to both the design and labeling of spray-paint cans, under Rule 702(a) and Daubert.

Defendants argue that Cagwin’s “failure-by-shaking” theory lacks support as it relies solely on the Fox report, which they contend is irrelevant as it did not address shaking paint cans, particularly their explosion. They also highlight Cagwin’s failure to test his theory and his inability to elucidate why his suggested alternative design—a straight-walled can made from single-reduced steel—would be safer. In response, the Plaintiff contends that Cagwin drew upon other scientific literature, specifically the report by Robert L. Grunes (the “Grunes report”)(mentioned during his deposition but not in his official report), which allegedly investigated five spray-paint cans that exploded when shaken. The Plaintiff also cites instances where Courts opted not to exclude experts who did not conduct tests on their proposed alternative designs.

The Court emphasizes the requirement that an expert’s opinion must be substantiated by adequate facts and data, typically from peer-reviewed reports, as outlined in Daubert. Both parties acknowledge that Cagwin primarily relied on the Fox report. The Court determines that the Fox report is irrelevant and insufficient to support Cagwin’s “failure-by-shaking” theory. The Fox report specifically tested the impact of dropping and mechanical abuse on double- and single-reduced steel cans, not the routine effects of shaking steel cans. The Court deems it unreasonable for Cagwin to extrapolate results from a test that imposed extreme, artificial pressure on steel cans to support his theory about routinely shaking cans. Furthermore, Cagwin admitted during deposition that the Fox report did not replicate the failure-by-shaking scenario described by the Plaintiff. The Plaintiff’s main counterargument regarding the Fox report being peer-reviewed is dismissed, as peer review of an irrelevant study does not render it, or Cagwin’s reliance on it, sufficient to support his opinion on an entirely different theory.

The Plaintiff contends that Cagwin relied on the Grunes report, but the Court notes that this report was not identified in Cagwin’s expert report and was raised for the first time during his deposition. Regardless of the untimely disclosure, the Court finds the Grunes report unpersuasive and unreliable. This report, arising from Rust-Oleum Corporation’s pre-litigation correspondence with its supplier, lacked peer review and did not involve scientific testing. Instead, it collected consumer anecdotes reporting aerosol can failure from routine shaking. Given the report’s adversarial nature, absence of scientific testing, and lack of peer review, the Court deems it unreasonable for Cagwin to extrapolate from these anecdotes and conclude that necked-in cans are more prone to exploding from shaking.

The Court emphasizes that in situations where an expert’s theory lacks widespread support, as in this case, the expert should undertake independent testing, such as recreating the accident, to substantiate the theory, citing the Toomey v. Millercoors LLC, 86 F. Supp. 3d 202 (E.D.N.Y. 2015) case. The Court notes that the Fox and Grunes reports are the only third-party scientific literature Cagwin allegedly relied upon to support his “failure-by-shaking” theory. Based on this, the Court concludes that Cagwin’s theory lacks broad support, and therefore, he should have conducted his own testing to either confirm or refute his theory.

In a design-defect case like the present one, the Court notes that an expert bears a special responsibility to present an alternative design and demonstrate, typically through testing, that the proposed alternative would have been safer for the user in the specific accident under consideration. Referring to the Hilaire case, the Court emphasizes that the core of an expert’s report in such cases should involve a comparison of the utility and cost of the product’s design against alternative designs, a comparison that is typically substantiated by testing of the proposed alternative design. Cagwin’s efforts in the design-defect opinion were deemed incomplete. While he asserts that a straight-walled can made of single-reduced steel would likely have averted the Plaintiff’s injury, he falls short in substantiating this claim with evidence, including any testing. The Court emphasizes that Cagwin did not provide proof, even though he acknowledged possessing the capability to do so, to establish that his suggested alternative design would have been safer for the Plaintiff’s use. Consequently, the Court deems Cagwin’s alternative design theory entirely unsupported.

Defendants contend that Cagwin’s application of his warning label methodology to the case is flawed. They argue that although he stated warning labels should highlight non-obvious risks, he testified that the risk faced by the Plaintiff (can bursting from striking it against a table) was obvious. Additionally, Defendants find Cagwin’s opinion regarding the efficacy of additional warnings nonsensical, as the Plaintiff denies striking the can, and Cagwin’s causation theory does not involve such an action. Furthermore, Defendants highlight the Plaintiff’s inability to recall reading the warning label, leading them to assert that Cagwin’s claim that a different label could have prevented the accident is speculative. Notably, the Plaintiff’s brief does not address or counter the Defendants’ arguments on Cagwin’s warning label-related opinions, effectively conceding the Defendants’ points.

The Court underscores that an expert witness must consistently apply their methodology to the available facts and data. Cagwin, in this instance, did not meet this requirement. While his stated methodology involved including non-obvious risks on the paint can’s label, he failed to elucidate how this additional warning language would have prevented the Plaintiff’s injury, thus lacking a coherent theory of causation. Notably, Cagwin contradicted his own position by testifying that the addition of a warning label in this case was “immaterial.” This assertion is supported by the fact that the Plaintiff cannot recall reading the can’s label.


The Court granted Defendants’ motion to exclude Dale Cagwin’s testimony and report for lack of qualifications and reliability. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways

This case illustrates several important requirements for expert witness testimony to be admissible under Federal Rule of Evidence 702 and Daubert. First, the expert must be properly qualified through education, training, and/or experience specifically related to the issues on which they intend to opine. Generalized expertise is not always sufficient especially coupled with the lack of professional and practical experience. Second, the methodologies and facts relied upon by the expert must sufficiently support their opinions and bear a logical connection to the issues in the case. An expert cannot extrapolate opinions on entirely different issues from unrelated research or data. 

Additionally, in product liability design defect cases, experts have a special duty to present an alternative feasible design and show through testing that it would have prevented the accident. Speculative testimony that additional warnings could have made a difference is also unreliable when there is no evidence they would have been read or heeded.

In excluding the engineer’s testimony in this case, the Court scrutinized his qualifications, methodology and reliance on unrelated research, failure to test alternative designs, and speculative opinions regarding causation. This serves as a guidepost for the detailed analysis required to determine if purported expert opinions meet admissibility standards under Rule 702 and Daubert. Careful vetting of expert methodology and logic is necessary to ensure reliability and aid the fact-finder.


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