Product liability defendant wins summary judgment because plaintiff’s expert offered no opinion on design defect.

If that headline made you blink, don’t worry – you read it correctly, and it accurately states what happened.  The case is Markel v. Douglas Technologies Group, https://ecf.ca8.uscourts.gov/opndir/20/08/192637P.pdf (8th Cir. 6/16/20), and it’s yet another example of a baffling phenomenon: the plaintiff failed to provide an adequate expert opinion on causation during discovery, resulting in summary judgment for the defendant.  The court’s unusually terse opinion (just two pages, not counting the caption) disposed of the appeal in short order:

During the last lap of a flat-track race in Ogilvie, Minnesota, Anthony Markel was injured after being thrown from his all-terrain vehicle (“ATV”) when its right rear wheel came off. Markel sued Douglas Technologies Group, Inc. (“DTG”), the manufacturer of the wheel, seeking redress for his injuries….

Markel argues that the DTG wheels he was using were not built to withstand the rigors of flat-track racing [and] that he had no way of realizing the wheels were inadequate because they were practically indistinguishable from the sturdier racing wheels sold by DTG….

In order to prove his product-liability claim Markel had to show that (1) the DTG wheels on his ATV were in a defective condition unreasonably dangerous for their intended use….

Markel’s claim depends on an assessment of the appropriate strength and design of aluminum ATV racing wheels. Such an assessment necessarily involves complex mathematical and engineering concepts that a lay juror cannot be expected to understand without the help of an expert. Markel asserts that his expert provided the requisite background, and in particular an opinion regarding the alleged design defect in and dangerousness of DTG’s wheel.  This contention, however, is belied by the expert’s report and by the expert’s deposition testimony, in which he specifically disclaims an opinion as to whether the subject wheel had a design defect that made it unreasonably dangerous. Summary judgment is appropriate in favor of DTG on Markel’s product-liability claim.  (Emphasis added.)

This is not the first time I’ve seen this – see https://www.videntpartners.com/blog/2018/plaintiffs%E2%80%99-fire-expert-witness-fails-establish-causation-%E2%80%93-defense-wins-summary-judgment and https://www.videntpartners.com/blog/2019/medical-expert%E2%80%99s-affidavit-opposition-summary-judgment-fails-establish-triable-issue – and I still don’t understand how it could happen.  In those previous posts I speculated about the possible causes, but the truth is, it’s impossible to know based solely on an appellate opinion.  That said, my tentative conclusion is that the cases were unwinnable, and either the expert or the plaintiff’s attorney (or both) dropped the ball, or there was a miscommunication between them.

In cases that come down to a “battle of the experts” at trial, there’s a legitimate disagreement between the experts.  But some cases simply can’t be successfully pursued or successfully defended.  A good expert’s job is to provide an unbiased opinion, so that counsel has a clear understanding of the strengths and weaknesses of the case and can make the right decision (or at least the best possible decision under the circumstances) about how to handle it.  At Vident Partners, we provide the best experts to help you make the right decision. 

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