District court wrongly ignored bulk of expert's testimony, Sixth Circuit rules.

A district court erred in excluding all of an expert witness's testimony because the court focused solely on the expert's testing and neglected to review the admissibility of the rest, the Sixth Circuit ruled recently. (Nemir v. Mitsubishi Motor Sales of America, Inc., No. 99-1907, 2001 WL 223775 (6th Cir. Mar. 2, 2001).)

The expert, Thomas Horton, was hired to testify in Michael Nemir's case against Mitsubishi. Nemir suffered severe brain injuries in December 1993 when his Dodge Stealth crashed into a tree at 18 mph. The impact threw him from the driver's seat into the back of the vehicle, where his head struck the back pillar support.

Paramedics found the driver's-side seat belt unlatched. Nemir testified at deposition that he was wearing his seat belt the night of the crash. The jacket he wore bore rub marks, indicating that the belt had come in contact with it.

Horton, an engineer with extensive training in seat belt design and the former engineering director for the company that manufactured the belt in question, surmised that the belt was partially latched and came unlatched when the car collided with the tree. He claimed that the belt's ability to latch only partially was a design defect, basing his conclusion on his background work and education, his analysis of the belt, and testing he performed on identical belt buckles that he salvaged from junkyards and obtained from plaintiffs in previous cases.

The trial court found the testimony regarding the testing inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579 (1993)), stating that it was neither reliable nor relevant and would not help the jury. Senior Judge John Feikens of the Eastern District of Michigan did not analyze Horton's testimony regarding any other issue. He struck Horton as an expert witness and granted summary judgment to the defendants.

Reversing, the Sixth Circuit found that it was "arbitrary" to focus on only a single aspect of Horton's testimony. The unanimous three-judge panel wrote in a per curiam opinion that "the district court held numerous oral arguments regarding the admissibility of Thomas Horton's testimony. While the trial court's investigation and issued opinion appear to exhaust this subject, it is clear that the district court erred in its analysis by excluding Horton's entire testimony."

The opinion noted that Horton testified on "numerous issues" during deposition, including the mechanics of seat belt operation, the occurrence and testing of partial latching, the availability of an alternative design, the physical evidence of Nemir's frequent seat belt usage, and the testing of his belt. The trial court opinion, however, erroneously stated that Horton "has not even attempted to perform his testing on the buckle from Dr. Nemir's seat" and described the "omission" as inexplicable.

The Sixth Circuit wrote, "This statement reveals the district court's incomplete review of the evidence." It explained that the Federal Rules of Evidence and the U.S. Supreme Court decisions in Daubert and Kumho Tire Co. v. Carmichael (526 U.S. 137 (1999)) "indicate that the district court must carefully review the qualifications and methodology employed by the proposed expert witness." The Supreme Court provided a list of factors that lower courts may consider to determine whether scientific evidence is reliable and relevant, including peer review, testing, error rates, and acceptance of the opinion in the scientific community, the appeals court said, but these factors are "flexible, particularly when reviewing the proffered testimony of an engineer."

Attorney Eric Buikema of Birmingham, Michigan, cocounsel for the plaintiff, said, "We are gratified that the Sixth Circuit has guaranteed our client the jury trial he deserves. The trial judge clearly and impermissibly crossed the line from judge to advocate and paid heed only to evidence that supported his clear defense bias.

"As the Sixth Circuit correctly found, ignoring vast testimonial, engineering, forensic, and consumer complaint evidence of seat belt use, and of the defective and dangerous nature of this buckle design, was a clear error that could have potentially affected the safety of millions of U.S. consumers," Buikema said.