Nebraska Court Excludes a Seasoned Electrical Engineering Expert’s Testimony, Finding it Speculative

Court: Supreme Court of NebraskaJurisdiction: FederalCase Name: Pitts v. Genie IndusCitation: 302 Neb. 88

In this product liability case involving an aerial lift platform malfunction that caused an electrician to sustain injuries, the plaintiff called an electrical engineering expert to testify to causation. However, the expert had never examined, used, repaired, or designed an aerial lift before this case. As a result, the district court granted the defendant’s motion to exclude the expert’s testimony.

Facts

While the plaintiff was approximately 30 feet in the air, the aerial lift platform in question allegedly malfunctioned causing it to tip over. In the 10 days before the accident, the plaintiff had used the same lift without any problems. The plaintiff brought strict liability claims, negligence claims, and an implied warranty claim against Genie Industries, Inc., the manufacturer and designer of the lift.

The button on the platform control panel was covered with electric tape, about which the plaintiff had no knowledge. According to the defendant, the button that was taped over was used to level the platform in mid-air. According to the defendant, the lift was altered after it was taken out of his possession.

Genie sought summary judgment and argued that electrician’s expert opinions on the issues of unreasonably dangerous conditions, defect, causation, and alternative design should be excluded.

The Expert

The plaintiff called an electrical engineer as his expert witness. The expert held a Ph.D. in electrical engineering and was a professor emeritus in the department of electrical and computer engineering at the University of Nebraska-Lincoln. However, the expert had never examined, used, repaired, or designed an aerial lift before this case. He also had never reviewed any other lift in the industry.

According to electrical engineer expert’s affidavit, the lift tipped over because of an “electrical malfunction in the lift’s circuitry.” The expert claimed that the possible causes of the electrical malfunction were incorrect or shorted wiring, bad components (such as bad or touching diodes), failed or stuck limit switches, sticking of failed or “worn out” switches, buttons, and relays, and potential movement earlier in the day of the accident which loosened diodes or wires which could have caused a short-circuit. The expert also thought the taped button on the platform control panel may have been a factor, but could not explain how.

The expert proposed a four-position switch as an alternative design which would have “totally isolated the outrigger power from the platform control panel.” But the expert also agreed that his alternative design could potentially fail. He did not test or analyze the feasibility of a four-position switch design.

The expert also opined that he could not determine the exact cause of the accident, but that the lift was in an unreasonably dangerous condition when it left Genie’s possession. The expert did not elaborate as to the foundation of his conclusion that these defects were present at the time it left Genie’s possession and did not retract his prior testimony that six or more possible causes could have resulted in the lift’s electrical malfunction.

Court’s Discussion

The court determined that the electrical engineering expert’s opinion was unreliable under a Daubert analysis.

According to the plaintiff, the expert testified with sufficient certainty that the electrical malfunction was caused by one of several possible reasons, all of which could be attributed to design defects that created an unreasonable danger of an electrical malfunction. However, the expert’s testimony as to causation was too speculative for a jury to conclude that the specific alleged design defect or defects were the “but for” cause of the electrical malfunction leading to the plaintiff’s injuries.

Although the expert had both experience and expertise in the field of electrical engineering, he testified that he had no knowledge about how other aerial lifts were designed. The expert also had no insight into the standards used in the industry for the design and manufacturing of such lift. He could not support his four-position switch design being used by any manufacturer’s utilizing lift. It was purely conceptual with no theory or test to support his claim. The electrical engineering expert also stated that with a four-position switch an electrical malfunction could still have occurred.

Held

The district court granted the defendant’s motion to exclude testimony. The court found that the district court did not err in determining that the expert was not qualified to opine that the specific underlying design defect was the failure to design the lift with a four-position switch.