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Expert Testimony of Accident Reconstructionist Wrongly Excluded, Sixth Circuit Rules

Two ironworkers, Richie Dilts and Matthew Collins, were killed when a steel panel there were standing on fell about 80 feet. Their estates sued and offered expert testimony from an accident reconstructionists, Stuart Nightenhelser, regarding why and how the panel fell. But the district court excluded the expert's testimony, a ruling the Sixth Circuit reversed in Dilts v. United Group Services, Nos. 10-5271, 10-5540 (September 17, 2012).

First, the court ruled that Nightenhelser possessed the necessary qualifications noting that he had a Bachelor of Science in physics and mathematics from Butler University, had worked in accident reconstruction for over a decade, regularly applied, as part of his job duties, laws of physics and mathematics to support his analysis and conclusions for the reconstruction of accidents and estimated that he had worked in over 1000 cases involving construction equipment, vehicles and the construction of buildings and other structures. That Nightenhelser may not have been familiar with all aspects of individual accidents was no grounds to exclude his testimony because "such lack of familiarity affects the witness's credibility, not his qualifications to testify." Davis v. Combustion Engineering, Inc., 742 F.2d 916, 919 (6th Cir. 1984).

Second, Nightenehlser's opinion was sufficiently reliable because he conducted an on-site inspection, photogrammetric analysis, performed calculations and algebraic equations along with other analytical steps. That Nightenhelser was not perfect and did not know everything did not disqualify him: "An expert's lack of experience in a particular subject matter does not render him unqualified so long as his general knowledge in the field can assist the trier of fact." See Sarkas ex rel Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 293-94 (6th Cir. 2007). Accordingly, the Sixth Circuit ruled that the district court had erroneously excluded Nightenhelser's expert opinion and testimony.

The opinion for the Sixth Circuit was written by Circuit Judge Eric Clay and joined by Circuit Judges Julia Gibbons and Helene White.

Robert L. Abell
www.RobertAbellLaw.com 

Weakening of Workplace Toxin Rules Underway

    A weakening of rules regulating workers exposure to toxic substances in their workplace is underway in these final months of the Bush Administration, the Washington Post reports ("U.S. Rushes to Change Workplace Toxin Rules").  Contrary to requirements that notice of the proposed changes be published in plans filed last December or in May notice of the proposal first surfaced on July 7 in a vague reference on the website of the White House's Office of Management and Budget.  The late notice of the proposal also violated a directive from the White House Chief of Staff that all regulatory proposals be published no later than June 1.  In the first 7 1/2 years of the Bush Administration, its Department of Labor adopted only one significant rule regarding toxins in the workplace and then only under court order.

Robert L. Abell
www.RobertAbellLaw.com

Criminal Prosecution for Worker Safety Violations

    Enacting meaningful criminal penalties for worker safety violations is urged by former Justice Department prosecutor David M. Uhlmann in an op-ed column, "The Working Wounded," in the New York Times.  Mr. Uhlmann reports some disturbing statistics and information: an employer that violates a worker safety rule and kills an employee faces only 6 months in jail under the federal Occupational Safety and Health Act (OSHA); if the employee is maimed and disabled the maximum penalty is up to a $70,000 fine; and since 1970 only 68 cases have been prosecuted under OSHA, although approximately 341,000 people have died at work. 

Robert L. Abell
www.RobertAbellLaw.com