Opinion
No. X04-CV-99-122680S
March 31, 2003
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION IN LIMINE TO PRECLUDE TESTIMONY OF PLAINTIFF'S EXPERT, DANIEL PACHECO
Plaintiff brings this lawsuit seeking recovery from injuries he suffered while operating the defendant Raymond Corporation's forklift truck known as an EASiReach during his employment when the EASiReach collided with a rack beam pinning his foot and ankle between the vehicle and the crossbeam causing him serious injury. Plaintiff brings this action under the Connecticut Products Liability Act § 52-572m et seq., and claims that the defendant Raymond should have designed the EASiReach to incorporate certain safety features incorporating a different design and certain warnings. In support of this claim, plaintiff offers the expert opinions and testimony of one Daniel Pacheco and Vincent Gallagher. The court previously ruled that Mr. Gallagher was not qualified to testify. The court now finds that Mr. Pacheco does not qualify as an expert as set forth in our Supreme Court's holding in State v. Porter, 241 Conn. 57 (1997) and in Section 7-2 of the Connecticut Code of Evidence.
In Porter, our Supreme Court determined that the trial court judge should perform a "gatekeeper" function as laid out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2796 (1993). Porter at pp. 73-74. Both Daubert and Porter dealt with the validity of a particular type of scientific evidence. The United States Supreme Court has decided that under the federal rules of evidence (702) the gatekeeper function of the trial court applies not only to testimony based upon scientific knowledge, but also testimony based upon technical or other specialized knowledge and that the so-called Daubert factors may be considered in determining the reliability of other experts. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999).
The Connecticut appellate courts have not gone as far as the federal courts. In particular, the Code of Evidence specifically takes no position as to whether Kumho, supra, should be applicable to non-scientific experts. However, other Superior Court rulings have held that the Daubert test for reliability of technical evidence should not be limited to empirical sciences. See e.g., Lemond Johnson v. Allis Chalmers et al., Docket No. X07-99-74165, Superior Court, Tolland County at Rockville (Sferazza, J.) (October 16, 2002).
Section 7-2 of the Connecticut Code of Evidence sets forth two conditions for the admissibility of expert testimony in its commentary. One, the witness must be qualified as an expert and two, the expert's testimony must assist the trier of fact in understanding the evidence or determining the factual issue. To meet the first condition, the expert's qualification, that is, his specialized knowledge, skill or experience, must lend assistance to the trier of fact. To satisfy the second prong, the scientific, technical or specialized knowledge of the "expert" must go beyond the common knowledge and/or comprehension of the ordinary juror.
Our Supreme Court has determined that in exercising its gatekeeping function, the court is to examine the validity of the methodologies underlying the proffered scientific evidence in determining whether such evidence should be admissible. Porter at p. 69. As stated by Daubert ( 509 U.S. at 589), the trial judge is to ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable. Our Supreme Court has stated the reliability rule in Porter by stating ". . . trial judges are not required to make a determination of the ultimate scientific validity of any scientific propositions. Instead, they need only make a much more limited inquiry: whether sufficient indicia of legitimacy exist to support the conclusion that evidence derived from the principle may be profitably considered by a fact finder at trial." Porter at p. 91. Thus, our Supreme Court has stated, "so long as the methodology underlying a scientific opinion has the requisite validity, the testimony derived from that methodology meets the Daubert threshold for admissibility." Porter at p. 81.
To guide the trial court in its gatekeeper function, our Supreme Court set forth a nonexclusive list of factors which the court may consider. These include, whether the methodology or theories have been tested and subjected to peer review, the prestige and background of the expert witness, the extent to which the technique in question relies upon subjective interpretations and judgments rather than objectively verifiable criteria and whether the testimony was developed and implemented solely to develop evidence for in-court use or whether the technique has been developed for extrajudicial purposes. Porter at pp. 85-86.
Applying the Porter test to this case, the court first looks to determine whether or not Mr. Pacheco has sufficient knowledge, skill, experience, training and education to be qualified. The defendant does not contest Mr. Pacheco's qualifications in this regard. The defendant's principal objection is whether his testimony would be relevant and reliable. The defendant argues that Pacheco's opinions are based upon his own subjective concepts rather than scientific methodologies which have been tested and that his opinions and proposed alternate solutions have not been subjected to the test as set forth in Porter. Basically, defendant argues that Mr. Pacheco's opinion is only his self-serving testimony that an alternate design should have been incorporated into the EASiReach and that these proposed alternates were economically and technologically feasible. Other than a little sketch that Mr. Pacheco prepared only days before the deposition depicting the heel guard which he was recommending, he did not prepare drawings for any proposed latching rear door and, in the defendant's view, did nothing more than set forth speculative concepts that were not supported by scientific validation or reliable bases. In other words, defendant claims Mr. Pacheco has offered nothing more than his ipse dixit that the EASiReach could have and should have incorporated his proposed alternate design.
Our law does not place upon a plaintiff in a products liability case an absolute requirement to prove a feasible alternate design because such a requirement "imposes an undue burden on plaintiffs that might preclude otherwise valid claims from jury consideration." Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 216-17 (1997). So, while an expert need not do everything to show that the proposed "fix" is technologically and economically feasible including building prototypes and doing marketing studies, the expert must do something to show that the "fix" would be an effective and workable cure.
The EASiReach forklift in question is a step-in model. That is to say that the operator steps in from the rear of the machine and operates it in a standing position. Accidents in these models tend to occur most frequently because a portion of the operator's body extends outside the operator's notch or something intrudes into the operator's compartment or from injuries to the operator in rollovers. The court saw no analysis by Mr. Pacheco of the effect of his proposed fixes on rollover accidents nor was there any analysis of how his proposed fixes would impact the numbers and types of injuries which occur to operators of these kinds of forklifts. He cites no other authorities supporting his position; i.e., peer review, and he admits that he has abandoned the methodology which should be employed in developing the safety changes which he advocates nor has he shown that the model in question violates any OSHA or other standards.
Lastly, while it has always seemed to the court the ultimate "bootstrap" argument to qualify a witness by asking how many times the witness has been qualified as an expert in other courts, the converse may be more persuasive. In weighing the reputation of the proffered expert, it would be appropriate to consider rulings of other courts who have found the expert not qualified when challenged on the same issues presently before the court. In Bourelle v. Crown Equipment Corp., 220 F.3d 532 (7th Cir. 2000), Mr. Pacheco was excluded from testifying on the safety of another aspect of a forklift truck because he had not validated his opinions on any scientific basis. See also Gun v. Macco Materials Handling Group, Superior Court of New Jersey, Appellate Division, Docket No. A4343-00T3 (November 26, 2002); Pierson v. Young, U.S. District Court, Western District of Oklahoma, Docket No. CIV99-1559-F (February 5, 2002). In the foregoing cases, it was determined that Mr. Pacheco had not done sufficient scientific analysis of his proposition to be permitted to testify.
The motion in limine with respect to Daniel Pacheco is granted.
McLachlan, J.