Expert Witness Profiler

Tag: Safety

  • Architectural Design Expert Witness’ Opinions on Retail Safety Excluded

    Architectural Design Expert Witness’ Opinions on Retail Safety Excluded

    On July 12, 2019, Plaintiff Karen Morgan went shopping for her son at Defendant’s Dick’s Sporting Goods (“DSG”) store in Gaithersburg, Maryland. As she walked through the store, she stopped to look at a display of women’s clothing. After she stooped down to look at the clothes on the bottom shelf, she felt a sudden pain on the top of her head. When she looked around, she saw a sign laying on the ground beside her. The sign was a large but lightweight object. Morgan did not notice the sign before the incident and she does not know why it fell. No one saw the sign fall but a DSG employee heard a loud bang around the time it happened. Plaintiffs alleged that they were injured after Morgan was struck by the sign.

    DSG filed a motion to exclude evidence from Plaintiffs’ liability expert, Jerry Birnbach, because his opinions are unreliable and speculative.

    Architectural Design Expert Witness

    Jerry Birnbach has bachelor of science degrees in architectural technology and architecture, and is a member of a number of professional organizations. He has experience as a quality control engineer, as a director of store planning, maintenance, and new store construction, and as an executive in charge of store design, display design, and retail safety.

    Get the full story on challenges to Jerry Birnbach’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    To begin with, Birnbach is a “retail safety expert.” Birnbach’s opinions are not based on any particular scientific theory that can be tested. And they are not based on a methodology subjected to the rigors of peer review and publication. Instead, his opinions are based on his experience. When considering whether an opinion based on an expert’s experience is reliable, courts consider whether the expert has explained “how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the facts.”

    The Court held that Birnbach’s opinions would not be helpful to a jury because they are not based on any specialized knowledge. Laypeople know that signs should not fall on customers’ heads while they are shopping in a store. They know that objects placed in high places can fall down if not properly secured. And they know that falling objects can cause injury. They do not need an expert to tell them these things.

    Held

    The Court granted DSG’s motion to exclude evidence from Plaintiffs’ liability expert, Jerry Birnbach.

    Key Takeaway:

    Because Birnbach’s opinions would not help the jury, their admission would be improper under Rule 702. The Court excluded Birnbach’s opinions because they did not require specialized knowledge and were opinions a layperson could form, and would thus not be helpful to a jury.

    Case Details:

    Case Caption: Morgan Et Al V. Dick Sporting Goods, Inc.
    Docket Number: 8:22cv1633
    Court: United States District Court for the District of Maryland
    Order Date: August 14, 2024
  • Safety Engineering Expert Witness’ Opinions About the Fall Hazard Admitted

    Safety Engineering Expert Witness’ Opinions About the Fall Hazard Admitted

    Plaintiff Guadalupe Garcia Al-Dahwa (“Al-Dahwa”) alleged that she suffered personal injuries as the result of a trip-and-fall accident in the parking lot of a movie theater owned by American Multi-Cinema, Inc. (“AMC”). Al-Dahwa averred that AMC had failed to warn her of the dangerous condition.

    Al-Dahwa, who said she suffered from a physical disability, contended she tripped and fell in a ‘designated walkway because the concrete in the walking area was cracked, broken, and not level.

    Plaintiff designated Jason English as a testifying expert witness. Jason English opined that the principal causative factor related to [Al-Dahwa’s] fall was the presence of an abrupt vertical rise and broken concrete disrepair in the accessible route providing access to the disabled parking area.

    AMC insisted that English’s proffered opinions will not help the jury understand the evidence or determine a fact issue. Second, AMC argued that the probative value of English’s opinions are substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury. 

    Safety Engineering Expert Witness

    Jason English is a licensed Professional Engineer, holding a B.S. in Industrial Engineering with a specialty in Systems Safety Engineering and an M.S. in Safety Engineering from Texas A&M University. English has also completed post-graduate coursework in the Department of Architecture at Texas A&M, focusing on the evaluation and design of means of egress components. He is a member of the American Society of Safety Professionals, Human Factors and Ergonomics Society, National Safety Council, and International Code Council. Since 1999, English has worked as a professional engineering consultant, primarily consulting in the field of safety engineering, including workplace safety, premises safety, product safety, safety management, and human factors/ergonomics. He also serves on several safety standard development committees for the American Society of Testing and Materials International.

    Get the full story on challenges to Jason English’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Reliability and Relevance Of English’s Opinions

    In AMC’s view, this is a relatively simple and straightforward case: Al-Dahwa “contended that she tripped and fell over a clearly visible area of concrete that was cracked and unlevel.” 

    In response, Al-Dahwa argued that English’s testimony will assist the jury because his knowledge and experience on the issues relevant to the case are beyond that of the average juror. 

    The Court found the subjects that English intended to address at trial were directly relevant to the elements of Al-Dahwa’s premises liability claim. For example, English planned on testifying that pedestrians, like Al-Dahwa, frequently fail to see hazards in front of them as they walk. This opinion, which English based on published human factors literature, was relevant to both the second element (whether the uneven surface on the walkway posed an unreasonable risk of harm) and the fourth element (proximate causation).

    English also intended to testify that the walkway where Al-Dahwa tripped and fell did not comply with the ADA, the TAS, and other applicable safety codes. This testimony was relevant to the third element of a premises liability claim—whether AMC failed to take reasonable case to reduce or eliminate the risk.

    Similarly, English’s proposed testimony that AMC should have “establish[ed] and implement[ed] a proper safety program to identify, evaluate, and correct hazards with the reasonable potential to cause serious injury” also addressed the third element.

    English’s Testimony Was Not Unfairly Prejudicial

    AMC argued that English’s testimony should be excluded under Rule 403 because it “would unfairly prejudice [AMC], confuse the issues, mislead the jury, and improperly bolster [Al-Dahwa’s] liability position.” The Court held that AMC was simply trying to recast its arguments concerning the reliability and relevance of English’s opinion through the lens of Rule 403. The Court already flatly rejected those arguments.

    Held

    The Court granted the Defendant’s motion to exclude the testimony of Jason English.

    Key Takeaways:

    • Once the proponent of an expert meets the threshold requirements of expertise, reliability, relevance, and helpfulness, the Court should generally admit the evidence.
    • English’s knowledge and experience related to the safety and accessibility codes applicable to where the incident occurred, safety engineering, when and how falls occur on premises are beyond that of the average juror. 

    Case Details:

    Case Caption: Garcia Al-Dahwa V. American Multi-Cinema, Inc Et Al
    Docket Number: 4:23cv2010
    Court: United States District Court, Texas Southern
    Order Date: July 11, 2024
  • Oil & Gas Expert Witness’ Statements of industry Customs and Practices Deemed Admissible

    Oil & Gas Expert Witness’ Statements of industry Customs and Practices Deemed Admissible

    On March 22, 2021, Plaintiff Brandon Long, an employee of Helmerich & Payne International Drilling Co. (“H&P”), was supervising the de-rigging of an oil rig in the Unita Basin near Myton, Utah.

    H&P hired a subcontractor to assist with moving the drilling rig and other equipment, which in turn hired Defendant J&C Enterprises, Inc. (“J&C”) to operate a crane as part of the de-rigging process. While Long was on the rig, employees of J&C allegedly removed some pins from a rig deck, which caused the load to shift and swing uncontrolled towards Long, hitting Long’s foot and pinning it between two other pieces of equipment. Long claimed J&C was negligent in securing the rig deck to the crane hook and has sued to recover for the injuries he sustained as a result.

    In defense of these claims, J&C has designated Daniel T. Reinke as an expert in oil and gas operations to testify on its behalf. Reinke opined that Long’s injury was the result of his own actions.

    Long filed a motion to strike Reinke’s opinions pursuant to Rule 702 as his “statements were simply lay testimony given the imprimatur of expert opinion and/or were unhelpful to the jury because they were untethered from any authority suggesting the customs and practices of the industry.”

    Oil & Gas Expert Witness

    Daniel Reinke is a professional engineer who has over 48 years of experience, both as an employee and consultant, in oil and gas operations. He has served as an operator, drilling engineer, reservoir engineer, and production engineer on over 2,000 oil and gas wells. He is the founder and president of an operating company which has served as operator and contract operator of more than 100 wells.

    Want to know more about the challenges Daniel Reinke has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    The Court admitted Reinke’s opinions that Long’s injuries were the result of his own actions

    The Court held that since Long has not shown Reinke’s articulation of industry customs and practices is contrary to established standards or otherwise infirm, Reinke’s statement of those standards based on his own experience is sufficient for admissibility. In other words, there is nothing objectionable in Reinke’s statements that everyone on site has Stop Work Authority, that each employee is responsible for his own safety while working at the site and must follow his own employer’s safety policies, that each contractor performs specialized services requiring different skills and safety protocols, and that it is a basic safety rule of the oilfield not to locate oneself between two unstable pieces of equipment.

    The Court added that Reinke’s opinion that J&C was not directing the work reasonably appeared to be an outgrowth of his observations that each contractor was responsible for its own piece of the de-rigging process and that, as the owner of the rig, H&P was responsible for directing the work.

    Moreover, it is unlikely a lay jury could be expected to know the layout and components of an oil rig or how the various parts of the rig and the equipment involved in the derigging process move and interact with one another which is why the Court admitted Reinke’s opinions that Long’s injuries were the result of his own actions and not the fault of J&C, as well as his suggestion that Long would not have been injured had he located himself anywhere else.

    According to Rule 704, the Court found that Reinke explained the bases of his conclusions as to the relative fault of each party, and to the extent his testimony may embrace an ultimate issue in the case, it seemed likely to “assist, rather than supplant, the jury’s judgment.”

    One of Reinke’s opinions struck the Court as potentially problematic

    However, Reinke’s conclusion that, “based on the incident report published by H&P, Long did not follow the safety policies and procedures of his employer” struck the Court as potentially problematic.

    Since Reinke did not describe the contents of the report; it may be the conclusion whether Long violated his employer’s safety policies is self-evident from the document itself.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion to strike the testimony of Daniel Reinke.

    Key Takeaway:

    The Court held that there is nothing objectionable in Reinke’s statements that everyone on site has Stop Work Authority, that each employee is responsible for his own safety while working at the site and must follow his own employer’s safety policies, that each contractor performs specialized services requiring different skills and safety protocols, and that it is a basic safety rule of the oilfield not to locate oneself between two unstable pieces of equipment. However, Reinke’s conclusion that, “based on the incident report published by H&P, Long did not follow the safety policies and procedures of his employer” struck the Court as potentially problematic since it was not at all apparent why it required expert interpretation.

    Case Details:

    Case Caption: Long V. J & C Enterprises, Incorporated
    Docket Number: 1:22cv2999
    Court: United States District Court, Colorado
    Order Date: May 15, 2024
  • Safety Expert Witness’ Interpretation of Driver Logs Deemed Reliable

    Safety Expert Witness’ Interpretation of Driver Logs Deemed Reliable

    A district judge in Texas allowed a truck safety expert to testify about safety regulation compliance after stating that his testimony did not consist of methodological flaws.

    Plaintiff Antoine Manson alleged that on March 20, 2021, at about 3:00 a.m., he was traveling on Loop 1604 in Bexar County, Texas when he was struck by Defendant Mariel A. Arias-Padilla (“Defendant Driver”), who was driving a commercial motor vehicle within the course and scope of her employment with Defendants B&S Trucking of Jackson, LLC (“Defendant Company”) and JJ&C Express Corp.

    The force of the impact allegedly caused Plaintiff to lose control and subsequently crashed into the median concrete barrier. Plaintiff alleged that he suffered major injuries as a result.

    Plaintiff sought to exclude the testimony of Rodney Ellis, Defendants’ expert witness. The Defendants designated Ellis as a commercial vehicle safety and safety regulation compliance expert. The Defendants stated that Ellis may testify regarding “commercial vehicle safety, hiring, training, supervision, risk management, loss prevention, regulatory compliance, operations, driver qualifications, driver safety procedures, hours of service regulations, and driving techniques.”

    Safety Expert Witness

    Rodney Dean Ellis II has been involved in the trucking industry as a licensed commercial truck driver and safety consultant since 1991, performed “dozens of audits of commercial motor carriers/shippers,” and received professional training by several transportation associations. 

    Get in-depth insights into Rodney Dean Ellis’ expert witness experience by requesting his Expert Witness Profile today.

    Discussion by the Court

    Plaintiff did not appear to challenge Ellis’ qualifications to testify. Rather, Plaintiff disputed Ellis’ conclusion that while Defendant Driver “was in off duty status, the global positioning data in the driver log records indicated that she had a co-driver who drove the tractor-trailer while she was off-duty.” 

    Plaintiff asserted that in reaching this conclusion, Ellis ignored key evidence including i) the driver logs do not indicate a co-driver; ii) Defendant Driver provided conflicting deposition testimony regarding the presence of a co-driver; and iii) the police report does not indicate the presence of such a co-driver.

    Defendants countered that Ellis relied on several parties’ depositions (including Defendant Driver), driver logs, global positioning data contained within the driver logs, and an “Interview with [Driver Defendant] Mariel Arias-Padilla.”

    Based on this information, Ellis testified he concluded there was evidence of a second driver because there was no unidentified driver movement of the vehicle in the logs, supporting that another driver with identifying credentials was logged into the system; that the logs contained no error messages consistent with Defendant Driver logged out but no other driver logged in; and that the data shows another driver logged into the database, though it does not specify which driver.

    Moreover, the Court held that the Plaintiff did not identify any methodological flaws with Ellis’ work. Rather, Plaintiff pointed to extrinsic evidence—such as conflicting testimony from Defendant Driver or the police report—to undercut Ellis’ interpretation of the driver logs.

    In conclusion, the Court found Ellis’ opinion reliable, because the driver logs were crucial in determining whether Defendant Driver was fatigued at the time of the accident.

    Held

    The Court denied the Plaintiff’s motion to exclude Defense Expert Rodney Ellis.

    Key Takeaway:

    The Court, citing Holcombe v. United States, 516 F. Supp. 3d 660, 675 (W.D. Tex. 2021), held that an opposing party’s “doubts about the bases” of an expert opinion did not render an expert opinion “unsupported,” and such questions affected “the weight to be assigned to that opinion rather than admissibility.”

    Case Details:

    Case Caption: Manson v. B&S Trucking of Jackson, LLC
    Docket Number: 5:21cv1181
    Court: United States District Court, Texas Western
    Order Date: May 28, 2024