The case is Smith v. Chrysler Group (5th Cir. 11/26/2018), http://www.ca5.uscourts.gov/opinions/pub/17/17-40901-CV0.pdf. The opinion concisely summarizes the facts as follows:
This products liability case arises from a deadly car crash. Arthur Melton Smith was killed while driving a 2013 Jeep Wrangler, designed and manufactured by Chrysler Group, L.L.C. Days after the crash, Chrysler sent out a Recall Notice explaining that the transmission oil cooler tube of some 2012 and 2013 Jeep Wranglers may leak, which could cause a fire in the underbody of the vehicle….Mr. Smith’s Jeep was never inspected for the defect before his accident, and the wrecked Jeep was not preserved for experts to conduct a post-accident inspection. But several days after the crash, [Mr. Smith’s daughters] returned to the scene of the accident and photographed what appears to be charred grass along the path Mr. Smith’s Jeep traveled once it left the road….In [the plaintiffs’] view, the recall defect caused a fire to start in the underbody of Mr. Smith’s Jeep, filling the passenger compartment with carbon monoxide. Upon being exposed to this carbon monoxide while driving, Mr. Smith lost consciousness and ran off the road and crashed.
When the parties designated expert witnesses and submitted their reports, the report of the plaintiffs’ fire expert stated that he could not determine whether the fire had been caused by the recall defect. Chrysler filed two motions: to strike the expert’s report for failure to meet Daubert standards, and for summary judgment. The plaintiffs in turn filed a successful motion to compel Chrysler to produce 10 years’ worth of documents relating to Jeep fire incidents. However, none of those fires were caused by the specific recall defect that the plaintiffs claimed caused Mr. Smith’s Jeep to catch fire and crash.
The plaintiffs’ opposition to the motion for summary judgment included a supplemental report from the fire expert, which “consisted primarily of a rehash of [his]…original report and made only cursory reference to the further information furnished by Chrysler….He does, however, purport to have examined this new information and…declares that [it] has allowed him to draw an ‘additional conclusion,’ namely, now he is able to conclude that it is more likely than not that the recall defect caused the fire that caused the crash.”
Chrysler moved to strike the supplemental report and pressed its motion for summary judgment. The magistrate judge recommended, and the district court agreed, that the supplemental report should be stricken and that summary judgment should be granted: “The magistrate judge…concluded that [the fire expert’s] new opinion was not reliable: ‘The additional discovery provided by Chrysler about other vehicle defects does not explain why [the expert] should be allowed to reverse his opinion that there is sufficient evidence for him to have an opinion about this defect.’ Furthermore, [the expert] offered no analysis to explain how the new information had changed his first conclusion that he could not determine a causal connection between the accident and the alleged defect.” On appeal, the Fifth Circuit upheld the striking of the expert’s supplemental report and affirmed the grant of summary judgment.
I am unwilling to assume that the plaintiffs’ attorney (a) was unaware that establishing causation was an essential element of the case, and (b) knew well in advance that his fire expert witness’s report lacked that crucial element. It seems more likely that the expert was slow in producing his report; that he completed it very close to the deadline for submission; and that only then, when it was too late to do anything about it, did the attorney learn that the expert couldn’t give him causation. Even worse, when the additional Jeep fire data that plaintiff’s counsel cleverly forced Chrysler to produce didn’t include any fires that were caused by the recall defect, the expert nevertheless reversed his prior negative opinion on causation with no legitimate basis for doing so. Presumably the plaintiff’s attorney submitted the supplemental report anyway because at that point he had no choice, the expert designation deadline having long since passed. He made a valiant effort to come up with other theories of liability that he argued did not require expert testimony, but neither the district court nor the Fifth Circuit found those arguments unpersuasive.
So what is the moral of this sad tale? At Vident Partners, our reputation rests not only on the exceptional qualifications of our experts, but also on their integrity. If the attorney had engaged a fire expert through us, the expert would have told him at an early stage that his causation theory was untenable. Of course, this would have been sad news for Mr. Smith’s wife and daughters. But it would have been better than pursuing the case all the way to the Fifth Circuit in vain – both for the plaintiffs, who paid the fees of a useless expert and incurred other substantial expenses along the way (federal appeals are not cheap), and for the plaintiff’s attorney, who devoted substantial uncompensated time to a hopeless endeavor.
Don’t skimp on experts – you can’t win without the right one, and the wrong one will wind up costing your clients more, possibly to no avail. The modest additional expense of engaging experts through Vident Partners is worth every penny. Call us and give us a chance to prove it the next time you need help finding an expert.