The defective product case recently decided by the Sixth Circuit, Lee v. Smith & Wesson Corp., No 13-3597 (July 29, 2014), is an interesting case. There was a previous post: Is Expert Testimony Inadmissible Because the Plaintiff's Expert's Theory Contradicts the Plaintiff's Testimony?
The plaintiff, Lee, was injured while firing a revolver made by Smith and Wesson that discharged irregularly and caused severe damage to his right eye. He sought to present expert opinion testimony from a mechanical engineer, but the district court excluded it because the expert's theory contradicted Lee's account of the incident. But Lee's testimony was not a judicial admission barring the expert's testimony as the Sixth Circuit explained:
... Lee's deposition testimony, in any event, does not constitute a judicial admission. ... The purpose of the doctrine is to promote the expedition of trials by allowing parties to rely upon lawyers' admissions. "In order to qualify as judicial admissions, and attorneys statements must be deliberate, clear and unambiguous."
Here Smith & Wesson points to no judicial admission on the part of Lee in his represented status as plaintiff. Instead, Lee has a witness testified as to what he remembered. A tort plaintiff should be able to testify honestly to his memory of what happened and still have his lawyer argue that on the evidence as a whole it is more probable than not that the memory was faulty.
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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