Experts can use government regulations and industry standards as a basis for their opinions.

Your response to that title is “Tell me something I don’t know,” right?  This is black-letter law!  Unfortunately, as every litigator knows, sometimes trial judges make decisions that are simply incomprehensible – decisions that fly in the face of well-known legal principles.  Fortunately, appellate courts (usually) set things right. 

A recent example of such a case is Gillespie v. Edmier, https://courts.illinois.gov/Opinions/SupremeCourt/2020/125262.pdf (Ill. 12/3/2020).  Plaintiff Gillespie, a truck driver, slipped and fell while climbing down the side stairs of a dump trailer built by defendant East Manufacturing.  The Illinois Supreme Court summarized the plaintiff’s expert’s testimony as follows:

In a deposition, the Gillespies’ expert, Gary Hutter, opined that the steps on the dump trailer were defective and unreasonably dangerous.  Hutter explained that the spacing and width of the steps, as well as the lack of side rails on the dump trailer, did not comply with the recommended practices of the Occupational Safety and Health Administration (OSHA), the American National Standards Institute, the Federal Motor Carrier Safety Regulations, and the Truck Trailer Manufacturers Association.

East Manufacturing moved for summary judgment.  Amazingly, “[t]he circuit court granted the motion, ruling that OSHA does not apply to trailers and that industry standards are not mandatory.”  On appeal, the intermediate appellate court reversed, and the supreme court affirmed the intermediate court’s decision:

Whether OSHA and the other protocols mentioned by Hutter during his deposition testimony are also admissible in evidence is not the touchstone for this appeal.  Hutter used these sources solely to form his expert opinion.  The sources were not admitted as substantive evidence.  That is a separate issue that is not the subject of this appeal.  Rather, the issue here is whether experts may rely on such data for the limited purpose of explaining the basis for the expert’s opinion.  

This court has already addressed that question.  Specifically, this court approved the use of OSHA standards by expert witnesses in [a 2002 case]….The defendant in [that case] argued that plaintiff’s expert should not have been allowed to testify that OSHA and other safety standards indicated a standard of care because they [were] inapplicable to the retaining wall where the plaintiff was injured.  This court concluded that “an expert must be allowed to testify regarding the basis for his opinion, because an expert’s opinion is only as valid as the reasons that underlie it.”  Accordingly, this court determined that the expert’s testimony…“was simply intended to support his expert opinion that defendant was negligent.”  [Citations omitted; emphasis added.]

In this case, Hutter’s deposition testimony, that the spacing and width of the steps and the lack of side rails conflict with OSHA protocol and other industry guidelines, was intended to support his expert opinion that East Manufacturing designed steps that were defective and unreasonably dangerous….[That] testimony was sufficient to create a genuine issue of material fact as to whether the dump trailer was unreasonably dangerous. Accordingly, we agree with the appellate court that the circuit court erroneously granted summary judgment in favor of East Manufacturing.

A separate opinion concurring only in the result, joined by three of the court’s seven justices, agreed that “experts may rely on data and facts not otherwise admissible when that information is of a type that is reliable,” but emphasized that “[t]he trial court remains the gatekeeper of information and must determine whether the information upon which the expert bases his opinion is of a type that is reliable.”  Therefore, “[a] trial judge need not allow the expert to recite inadmissible evidence to explain the basis of the opinion when…its probative value in explaining the expert’s opinion pales beside its likely prejudicial impact or its tendency to create confusion.” 

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