Update (June 3, 2013): A few weeks ago, Minnesota Litigator wrote about Twin Cities lawyer Terry Wade’s twenty-three year quest to hold bike manufacturers’ accountable for injuries caused when the front wheels fall off bikes equipped with quick-release devices. The subject of that post was Wade’s loss of a motion to amend the complaint to add punitive damages in his new case against Trek. As Minnesota Litigator noted, twenty-three years ago, the Minnesota Court of Appeals also rejected Wade’s attempt to win punitive damages against a quick-release component manufacturer.
Another near-fatal blow appears to have landed on Wade’s quest. On May 8, 2013, Judge Ann Montgomery granted Trek’s motion to exclude most of Wade’s expert’s opinions. Judge Montgomery also partially granted Trek’s motion for summary judgment on several product liability claims. It’s worth wading through the first twenty-one pages discussing the Plaintiffs’ various product liability theories to get to page 22, where the best part of the opinion starts. Reading it is enjoyable to all those litigators who have had to deal with the shifty expert witness who, enabled by his handlers, provides remarkably crafted testimony to destroy their case (or defense) or the other kind of expert—the one who avoids providing any substantive deposition testimony but who provides detailed, unequivocal testimony at trial.
Judge Montgomery, who’s probably seen these expert tricks (tactics?) too often, struck the Sannys’ expert’s errata sheet and most of his opinions, concluding that the errata sheet, amounted to a do-over of his deposition and that most of his opinions were “circular,” “lacked any repeatable analysis,” and “irrelevant.” (Just to name a few of the opinions that Montgomery identified).
The Sannys’ expert, David Hallman, was deposed in November 2012. Neither Hallman or any of their attorneys asked if Hallman could review and make corrections to his deposition. But exactly 30 days later, after the deadline for depositions had passed, Hallman submitted an errata sheet with 57 edits, many of which Judge Montgomery found “completely reverse or substantively amend Hallman’s original answers to Trek’s deposition questions.” For example, during his deposition Hallman stated that there were no engineering standards that might require a bike manufacturer to recall bikes without secondary retention devices, but 30 days later, he stated that engineering ethics required it and cited engineering ethical codes. As Judge Montgomery observed: “Many of Hallman’s ‘corrections’ include citations to the record, to statues and jury instruction models, and to engineering standards never once mentioned in the original deposition.”
Judge Montgomery then took some swings at Hallman’s opinions and excluded his testimony that the Trek quick-release mechanism was “unreasonably dangerous.” The Judge decided that Hallman relied on “circular logic,” and he failed to conduct any testing on secondary retention devices. Summing it up, she stated: “Nothing about this opinion derives from scientifically reliable or repeatable methods; it simply affirms Plaintiffs’ view of the evidence without adding insight.”
Every litigator who has worked with experts has to wonder, what happened here? When and did this proverbial wheel come off? How could this expert witness’ be so unprepared for his deposition testimony? And what should the wise litigator have done in the days before the deposition when it became apparent that the expert was not prepared to offer admissible opinions (Let alone cite to the record and generally accepted standards in his or her field)? And then what should the wise litigator have done after the expert’s deposition goes forward and produces such a disaster? This litigator invites the readers’ comments to these questions.
