Products Liability Law Daily Expert testimony limited but not excluded in defect case involving Sears lawn care device
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Monday, March 5, 2018

Expert testimony limited but not excluded in defect case involving Sears lawn care device

By Georgia D. Koutouzos, J.D.

Sears Corporation was unable to thwart, based on unqualified expert testimony, a product liability action brought by a consumer who allegedly had injured his cervical spine while using a weed whacking device manufactured and sold by a Sears subsidiary, a federal court in Pennsylvania determined. Rejecting the company’s motions to exclude both the injured man’s medical causation and ergonomics experts, the court nevertheless narrowed the scope of the latter’s testimony to only the force transmitted onto the consumer’s shoulder and neck by the device’s shoulder strap and the lack of proper warnings related to that force (Hagan v. Sears Appliance and Hardware Store, March 2, 2018, Bartle, H.).

A consumer who had purchased a Craftsman-brand "weedwacker" from a Sears store and who allegedly had sustained severe injuries to his cervical spine during its use filed suit against Sears Appliance and Hardware Store and various other Sears Corporation-related entities (collectively "Sears"). Asserting that the device was defectively designed, the consumer brought claims of strict products liability, negligence, and breach of warranty. Sears moved to exclude the testimony of the consumer’s experts, also moving for summary judgment in the action on the basis that the consumer could not establish the element of causation in each of his claims. According to Sears, the testimony of the experts would be insufficient and, as such, was inadmissible under the standard set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) as well as the federal evidentiary rules.

Medical expert. Sears maintained that the testimony of the consumer’s expert on the medical causation of the injuries should be excluded as unreliable since the expert neither had seen the weed whacking device nor had performed any testing or analysis on it. The consumer countered that his medical expert’s qualifications as a doctor of osteopathy with experience in that field, evaluation of and history taken from the consumer, and the consumer’s past medical records relating to cervical spine/disc herniation qualified the expert to provide specialized testimony on medical causation under Daubert, as did the expert’s experience in diagnosing and treating patients in the field of rehabilitation and osteopathic medicine and the doctor’s consideration of the report prepared by the consumer’s ergonomics expert.

The court found that the medical expert would opine that the consumer’s use of the weed whacking device was the medical cause of his injuries. Viewing together the expert’s qualifications, his experience in the field of osteopathy, the basis of his causation conclusion, and the issues of this case, his expert testimony regarding the medical causation of the consumer’s cervical spine injuries met the requirements of Daubert and the applicable evidentiary rule. Accordingly, his testimony on that issue would be admitted, with Sears having the ability to challenge that testimony via cross-examination.

Ergonomics expert. The consumer’s ergonomics expert would opine that the design defects of the weed whacking device were the factual cause of the harm to the consumer, with the expert’s opinion aimed at three distinct defects of the device: (1) the defect in the shoulder strap causing shear force to be applied to the shoulder and neck; (2) the defect in the shoulder strap causing an increase in the hand-arm vibration transmitted to the shoulder and neck by the shoulder strap; and (3) the defect in the shoulder strap and manual pull cord causing force to shoulder and neck when the pull cord is used.

Regarding the expert’s qualifications, the court noted that he is the principal of a consulting firm that specializes in ergonomics—in particular, the analysis of work environments, product design, and the ergonomic human response to the use of products. More than half of his professional work consists of providing expert consulting in legal matters related to ergonomics. In addition, he conducts product design and testing, analysis of work environments and products, conducts and reviews training programs, and performs other ergonomic-related functions.

His expert report detailed the documents and information he considered in creating his report, and described the various testing that he had performed on the weed whacking device and the results of that testing. The expert relied on the tests that he performed using the device as well as past studies previously conducted by him and others relating to shear force and hand-arm vibration. Furthermore, he considered scientific studies and conclusions, mathematical calculations, manufacturing standards, and literature in order to determine the force and hand-arm vibration necessary to cause injury to the cervical spine.

Therefore, as to the first of the three defects to which the expert would testify, the expert concluded that the shear force applied to the consumer’s cervical spine was greater than the minimum amount necessary to cause injury to the cervical spine, and that this force caused the consumer’s injuries. Given the expert’s abovementioned qualifications, the court determined that the expert’s testimony on the defect of the shoulder strap and related need for warnings was admissible.

With respect to the assertion that the weed whacking device’s shoulder strap amplified the device’s hand-arm vibration and transmitted this vibration to the consumer’s shoulder and neck, causing increased musculoskeletal response in the cervical spine area, the court found that this testimony was inadmissible. In addition to the hand-arm vibration testimony, the expert conceded that the consumer’s injuries had not been caused by the hand-arm vibration of the device; therefore, this area of testimony and the need for warnings on the subject would not aid the trier of fact.

Finally, the court found that the testimony related to the force generated by the device’s pull cord and transmitted onto the consumer’s shoulder and neck through the shoulder strap would not "fit" for the purposes of the case under Daubertand the evidentiary rules. The consumer stated that he did not manually start the weed whacking device using the pull cord; instead, he started the device using the automatic starter that he had purchased. Consequently, any testimony by the ergonomics expert related to the pull cord was excluded because it would not be relevant for the purposes of the case and would not assist the trier of fact.

Accordingly, Sears’ motion to exclude the testimony of the consumer’s medical expert was denied and the company’s motion to exclude the testimony of the consumer’s ergonomics expert was denied in part and granted in part, with summary judgment deemed to be unwarranted.

The case is No. 16-6461.

Attorneys: Thomas F. Sacchetta (Sacchetta & Baldino) for Thomas Hagan. Frederick W. Bode, III (Dickie, McCamey & Chilcote, P.C.) and Peter A. Holdsworth (Wegman Hessler & Vanderburg) for Sears Appliance and Hardware Store, Sears, and Sears Brands, LLC.

Companies: Sears Appliance and Hardware Store; Sears; Sears Brands, LLC

MainStory: TopStory ExpertEvidenceNews HouseholdProductsNews CausationNews PennsylvaniaNews

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