Is an expert witness's testimony inadmissible because the expert's theory contradicts the plaintiff's testimony? Must an expert conform his theory to the factual scenario presented by the plaintiff's testimony? The answer to these questions is "no," as the Sixth Circuit held recently in Lee v. Smith & Wesson Corp., No 13-3597 (July 29, 2014).
This was a products liability case. Plaintiff Mark Lee was injured while firing a revolver made by Smith & Wesson. While target shooting, Lee fired two shots without incident, but, on the third shot, the gun cylinder opened and the blast from the shot did severe damage to Lee's right eye. In support of his claims, Lee sought to introduce the expert testimony of a mechanical engineer, Roy Ruel.
Lee's testimony regarding the incident and Ruel's theory as to how it occurred differed in three respects: "(1) Lee testified that he had no difficulty firing the gun the third time, whereas Ruel stated that the gun did not immediately fire because the cylinder failed to close fully; (2) Lee testified that the cylinder was closed when he fired the gun, whereas Ruel stated that it was open but appeared to be closed; and (3) Lee's demonstration of his grip on the gun showed that he did not touch the thumb latch, whereas Ruel stated that Lee pushed on the thumb latch." Based on these contradictions, the district court ruled Ruel's expert testimony inadmissible; the plaintiff's stipulated to dismissal and appealed.
The Sixth Circuit reversed. First, a basic rule: "a party is not precluded from proving his case by any relevant evidence, even though that evidence may contradict the testimony of a witness previously called by him." Second, a jury could conclude reasonably that Lee was mistaken about what had happened: "a reasonable factfinder could conclude that Lee thought he had closed the chamber but in fact did not, and instead overlooked the opening, which Ruel suggests was the case in Lee's accident." Third, admission of the expert testimony was directly supported by prior decision, Greenwell v. Boatwright, 184 F.3d 492 (6th Cir. 1999), which upheld the admission of expert testimony despite contradictions between the expert's testimony and eyewitness's testimony, because physical evidence was the basis for the expert testimony.
The majority opinion in the Sixth Circuit's 2-1 decision was authored by Circuit Judge John Rogers joined by Senior Circuit Judge Eugene Siler; Senior Circuit Judge Damon Keith dissented.
Robert L. Abell
www.RobertAbellLaw.com
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