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Using an Expert Witness as a Landmine: Analysis of Pineda v. Ford Motor Company

By James J. Donohue and Christopher E. Ballod

Few things can be more important to a product-liability case than the expert. If all goes according to plan, the jury will rely on your expert as a trusted professor who explains the complicated concepts the jury must understand. Accordingly, the trial court is entrusted with the duty of assuring that these powerful witnesses meet a reasonable baseline for trustworthiness before they are allowed to speak to the jury. The Third Circuit’s recent decision in Pineda v. Ford Motor Company [1] poses a potentially troubling development for lawyers facing off against expert witnesses. This article reviews the Pineda decision and comments on its implications for the use of expert witnesses at trial.


General Standards for Introducing Expert Testimony
The onus of determining whether a proposed expert’s testimony is sufficiently relevant and reliable to go to the jury falls on the trial court. [2] As the circumstances of each case can vary dramatically, a trial court’s discretion to allow or to exclude expert testimony is unassailable, absent some abuse of discretion. There are three factors the trial court must weigh, typically in connection with a pretrial Daubert hearing, when deciding whether to allow expert testimony: “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” [3] An appellate court may not reverse the exercise of discretion “unless there is a definite and firm conviction that the court below committed a clear error of judgment” and based its decision on “a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact.”[4]


Summary of Pineda v. Ford Motor Company
Pineda v. Ford Motor Company was a product-liability case brought in the U.S. District Court for the Eastern District of Pennsylvania. The plaintiff, Jose Pineda, was an auto technician who was repairing a 2002 Ford Explorer’s rear liftgate when the liftgate’s glass shattered, injuring him. Specifically, when the accident happened, Pineda was tightening a nut that connected the liftgate glass to the frame; he testified at deposition that he torqued the nut according to the specifications in the Explorer manual. Pineda sought damages from Ford.


Pineda retained an engineering expert, Craig Clauser, to support his defective-design and failure-to-warn claims. Ford challenged Clauser’s qualifications and reliability as an expert witness, and the district court held a Daubert hearing. At the beginning of the hearing, Pineda withdrew his defective-design claim.


During the hearing, Clauser, a professional engineer, testified that the Explorer manual: (1) did not state that failure to follow installation instructions for the liftgate glass was a safety issue; and (2) contained the proper procedure for replacing the liftgate glass but did not provide instructions dedicated specifically to hinge replacement. He based his opinion on his review of a remedial 2004 Safety Recall Instruction (SRI) that Ford issued two years after the Pineda accident, which contained an adequate safety warning and hinge-replacement instructions. He admitted that he had not performed any testing or inspections of the product. Clauser also conceded that he was not a warnings expert, but he stated that he believed warnings were “a solution to an engineering problem.” [5]


The trial court excluded Clauser’s testimony, determining that he was not qualified as a warnings expert and that his methodology was not reliable. Pursuant to Federal Rule of Evidence 407, the court ruled that the basis for Clauser’s opinion, the 2004 SRI, was remedial-measures evidence and refused to admit it, thereby precluding the need for limiting jury instructions. The court also determined that even if Clauser were allowed to testify that the warnings in the manual were insufficient, Pineda had no expert testimony about what actually caused the liftgate glass to break. Summary judgment was later entered in Ford’s favor, and Pineda appealed to the Third Circuit.


The Third Circuit reversed both the grant of summary judgment and the underlying order excluding Clauser’s expert testimony. Despite acknowledging that the abuse-of-discretion standard applied, the Third Circuit focused on its legal interpretation of the Federal Rules of Evidence, which warrants de novo review. Thus, insofar as the trial court’s decision implicated Federal Rule of Evidence 702, the panel proceeded to give the trial evidence a “fresh look.”


The Third Circuit first examined the ruling that Clauser was not qualified as a warnings expert. On this point, the Pineda opinion sets out at length Clauser’s qualifications as an engineer, concluding that his “formal qualifications are unassailable.” [6] Under Rule 702’s liberal qualification requirement, the panel held that Clauser did not have to be qualified in the “design of automobile rear liftgates or the drafting of service manual instructions.” [7] Clauser’s expertise in the “stresses and other forces that might cause a material such as glass to fail” was enough to satisfy Rule 702. [8] The panel went on to say that Clauser was qualified to opine that the manual should have had an explicit warning that failure to install the glass properly was a safety issue, even though Clauser was not qualified to testify about how the warning should appear. The Third Circuit was persuaded by Clauser’s testimony that a warning can provide a solution to an engineering problem.


The Third Circuit then turned to Clauser’s reliance solely on his general experience and the 2004 SRI. The panel held that the trial court erred by applying Rule 407 to exclude evidence of subsequent remedial measures without also considering Federal Rule of Evidence 703, which allows experts to base their opinions on evidence that would not otherwise be admissible. This issue had not been addressed by either party, and the panel raised the issue itself for the first time during oral argument. Rule 703 states:


The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.


Based on Rule 703, the Third Circuit held that “it is reasonable for an engineer to rely upon a warning and alternative safety instruction subsequently issued by a manufacturer in forming an opinion that an earlier service manual fails to provide adequate instructions and warnings to automobile technicians.” [9] Clauser’s use of the SRI and his general experience with glass was also enough for the Third Circuit to find his methodology reliable under Rule 702 and the Daubert standard.


The panel noted that, under the “presumption against disclosure of otherwise inadmissible evidence” of Rule 703, in order for Pineda to offer Clauser’s opinion testimony at trial, the SRI need not be disclosed to the jury; should Ford cross-examine Clauser on the basis for his opinion, however, the SRI “would become part of the record for the jury to consider.” [10]


In sum, the Pineda court held that the expert could testify even though the sole basis for his opinion was inadmissible remedial-measures evidence. Furthermore, the appellate judges opined that cross-examination of the expert on the basis for his opinion would open the door to the admission of the remedial-measures evidence. In the end, the defense was left with a poor choice: either allow the expert to testify with impunity or cross-examine the expert only to have the jury hear very prejudicial evidence.


Analysis and Implications
The Pineda decision leaves both trial courts and counsel in a difficult situation. The Third Circuit appears ready to circumvent the deferential abuse-of-discretion standard for reviewing a trial court’s decision regarding the admissibility of expert testimony. Further, insofar as Federal Rule of Evidence 702 will always be implicated by a trial court’s ruling on the admissibility of expert testimony, an appellate court could always choose to take a fresh look at the evidence on the ground that the standard for reviewing interpretation of the Federal Rules of Evidence is de novo. Add to this the liberal admissibility policy read into Rule 702, and it will be a rare occasion for a trial court’s preclusion of an expert witness to be upheld.


Specifically regarding products-liability cases, Pineda stands for the proposition that a failure-to-warn theory may be supported by an engineering expert so long as the expert is generally familiar with the subject matter and the defect is the absence of a warning rather than an improperly labeled warning. Although an engineering expert might be disallowed from offering testimony about how a properly worded label should appear, in cases like Pineda, where a subsequent iteration of the warning appears, this preclusion would not be much of a handicap.


The dynamics of Federal Rule of Evidence 703 are also affected by Pineda. Rule 703 was promulgated with the idea that an expert witness will necessarily rely on texts and other treatises that, in most cases, would not themselves be admissible. Introduction of textbooks generally accepted in an expert’s field is unlikely to be prejudicial, as these materials are almost never central to the facts of the case. Yet the Pineda decision expanded Rule 703 by allowing an expert witness to rely on merely a single piece of evidence that was not otherwise admissible and that was specific to the facts of the case. The SRI Clauser relied on implicated policy concerns central to the prohibition against admitting evidence of subsequent remedial measures. The Pineda decision risks allowing the jury to find that the 2002 Explorer manual was defective based solely on Ford’s improvements to the manual contained in the 2004 SRI. Because Clauser’s expert testimony was based exclusively on his general experience and the SRI, the only way to attack his opinion would be to address the SRI before the jury.


If expert opinions are generally admissible under Rule 702, and Rule 703 is interpreted to allow an expert to base his or her opinion on prejudicial evidence specific to the facts of the case, one could predict that expert testimony might be used intentionally as a vehicle for introducing otherwise inadmissible and even highly prejudicial evidence. And the significance of such evidence would be further bolstered by the fact that it is being introduced through one of the most powerful witnesses in the case: the expert. In short, the Pineda precedent will allow experts to be inserted into cases merely as landmines that could potentially explode the opponent’s position. Pineda marks a further rise in the importance not only of expert testimony but also of developing, as early in the case as possible, a strategy for dealing with these witnesses.


James J. Donohue is a partner in the Litigation Department of White and Williams LLP, in Philadelphia, Pennsylvania; Christopher E. Ballod is an associate in the Litigation Department of White and Williams LLP, in Philadelphia, Pennsylvania.

 

End Notes


  1. Pineda v. Ford Motor Company, 520 F.3d 237 (3d Cir. 2008).
  2. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).
  3. Fed. R. Evid. 702.
  4. In re TMI Litig., 193 F.3d 613, 666 (3d Cir. 1999).
  5. Pineda, 520 F.3d 237, 244 (3d Cir. 2008).
  6. Id. at 245.
  7. Id. at 244.
  8. Id. at 245.
  9. Id. at 247.
  10. Id. at 247 n.14.

 
  • January 26, 2009 – As an insurance industry expert witness on behalf of law firms, in cases such as World Trade Center, Hurricane Katrina, Finite Risk, etc this is very helpful information. Thank you, Andrew Barile, MBA, CPCU.
  • January 26, 2009 – The Court seems to have gone around the Joiner decision. Is Ford planning to appeal?

 

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