Why it is vital to have the RIGHT expert witness.

A recent opinion of the US Court of Appeals for the Seventh Circuit, Kopplin v. Wisconsin Central Limited, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D02-01/C:17-3602:J:Sykes:aut:T:fnOp:N:2286594:S:0, is an excellent reminder that a case can fail without a well-chosen and properly prepared expert witness. 

Kopplin, a conductor for Wisconsin Central Limited railroad, alleged that he injured one of his elbows while attempting to operate a broken railroad switch, causing him to develop medial and lateral epicondylitis.  The defendant filed a motion for summary judgment; the trial judge excluded the opposing affidavit of the plaintiff’s expert witness, Dr. Etienne Mejia, an orthopedic surgeon, and granted the motion; and the court of appeals affirmed.  

The primary problem with the affidavit was that it was inconsistent with the expert’s testimony at deposition.  Dr. Mejia’s affidavit contained multiple assertions about causation that directly contradicted his deposition testimony.  The court of appeals, quoting the trial judge’s opinion, explained that “a party may not ‘create an issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony.’”  The court acknowledged exceptions to this rule, but summarily dismissed them.

The court also discussed the “evidentiary relevance and reliability” test from Daubert.  The  most troubling reliability issue was “[Dr. Mejia’s] admission that he never considered whether factors other than the switch could have caused the initial injury.” Dr. Mejia’s opinions failed to create an issue of fact on causation because “he admitted that he did not know whether throwing the switch could have caused the January injury in the first place.  He testified that it would be ‘speculation’ to say one way or the other.”

The lesson of this case is that it is not sufficient to have a well-qualified expert (Dr. Mejia’s credentials in orthopedic surgery and sports medicine are first class) – it is also necessary to have the *right* expert.  Dr. Mejia could explain the medical issues in the case, but he could not establish causation.  When it comes to determining whether a given event – in this case, the motion of the plaintiff’s arm when he tried to operate the broken switch and the forces that impacted his elbow as a result of that motion – caused a given injury, a biomechanical engineer is the right expert.  A biomechanical engineer’s opinion that the plaintiff’s elbow was injured when he tried to throw the switch would likely have defeated summary judgment.  On the other hand, if a biomechanical engineer had told the plaintiff’s attorney that on these facts it was impossible to establish causation, the lawsuit probably would not have been filed, and a fruitless expenditure of time and money would have been avoided.


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