MILLER ET AL., APPELLANTS, v. BIKE ATHLETIC COMPANY ET AL., APPELLEES.
No. 96-1030
Supreme Court of Ohio
January 7, 1998
80 Ohio St.3d 607 | 1998-Ohio-178
Submitted September 9, 1997. APPEAL from the Court of Appeals for Belmont County, No. 94-B-52.
- A trial court’s role in determining whether an expert’s testimony is admissible under
Evid.R. 702(C) focuses on whether the opinion is based upon scientifically valid principles, not whether the expert’s conclusions are correct or whether the testimony satisfies the proponent’s burden of proof at trial. - When an out-of-court experiment is not represented to be a reenactment of the accident and deals with one aspect or principle directly related tо the cause or result of the occurrence, the conditions of the accident need not be duplicated.
Lancione, Davis & Lloyd Law Office Co., L.P.A., and Richard L. Lancione; Tarasi & Associates, P.C., Louis M. Tarasi, Jr., and Elizabeth T. Stevenson, for appellants.
Davis & White and Phillip M. Davis, for appellee Bike Athletic Company.
Kinder, Harper, Hazlett & Hinzey and Gregory W. Hinzey; Thorp, Reed & Armstrong and Randolph T. Struk; Scharf Law Office and Ron Scharf, for appellee Bike Athletic Company and Athletic Helmet, Inc.
Thomas, Fregiato, Myser, Hanson & Davies and Rodney D. Hanson, for appellee ACE Cleaners & Reconditioners of Athletic Equipment, Inc.
Sommer, Liberati, Shaheen & Hoffman, Keith A. Sommer and David K. Liberati, for appellees Catholic Diocese of Steubenville and/or the Diocese of Steubenville Catholic Charities, d.b.a. St. John’s Central Catholic High School and St. John’s Catholic Church of Bellaire, Ohio, and Frank E. Vingia.
{¶ 1} On September 7, 1990, John Patrick Miller, plaintiff-appellant, was seriously injured while playing football for St. John’s Central Catholic High School in Bellaire, Ohio. Attempting to make a tackle, Miller collided head-on with another player who was running toward him at full speed. Miller sustained a comminuted fracture of the vertebral body of C5, with severe spinal cord injury, and was rendered quadriplegic.
{¶ 2} Miller filed this lawsuit against defendants-appellees, Bike Athletic Company, Ace Cleaners & Reconditioners of Athletic Equipment, Inc., Athletic Helmet, Inc., the Catholic Diocese of Steubenville, St. John’s Central Catholic High
{¶ 3} Following extensive discovery, appellees filed motions for summary judgment. Appellees challenged primarily the expert opinion of James Lafferty, a mechanical аnd biomedical engineer retained by appellants, who believed that Miller’s injury could have been prevented if the helmet had been properly inflated. Appellees also questioned the procedures Dr. Lafferty used to have the helmet tested.
{¶ 4} The trial court granted summary judgment for appellees and held that Lafferty’s opinion and that of two other experts who relied upon his opinion were inadmissible. The court reasoned that since Lafferty’s opinion was premised on an out-of-court experiment which was dissimilar to conditions on the playing field, his opinion could not be considered, as it would confuse and mislead a jury. The court instead relied upon Dr. Joseph Maroon, an expеrt for appellee Bike Athletic Company, whose opinion was that no football helmet is currently designed to prevent the type of injury Miller sustained to his neck.
{¶ 5} The court of appeals affirmed on similar grounds. It found that the trial court was warranted in striking Lafferty’s expert opinion, that the experiment on the helmet was inadmissible, and that the other experts’ opinions presented by appellants were also inadmissible. Upon review of the evidence, the court
{¶ 6} The cause is now before this court upon the allowance of a discretionary appeаl.
{¶ 7} In determining whether the trial court was warranted in granting appellees’ motions for summary judgment, we must consider whether the court properly excluded the scientific testimony of appellants’ expert witnesses.
I. Expert Testimony of Dr. Lafferty
{¶ 8} At the core of this determination is whether the testimony of James Lafferty was admissible and whether the test he based his opinion upon was reliable.
{¶ 10} Lafferty took the helmet to Capitol Varsity Athletic Equipment, Inc. to test it in accordance with standards established by the National Operating Committee on Standards for Athletic Equipment (“NOCSAE”). The purpose of such testing is to determine the helmet’s shock-absorption properties under various conditions. The NOCSAE standard is a head-protection standard; however, in Lafferty’s opinion, the test can also be used to determine whether a helmet can prevent injuries to the neck. In the NOCSAE test, the helmet is mounted on a head form and then dropped from varying heights, with the head form aligned so that impact can occur at the sides, back, top, and front. The “severity index” is then cаlculated from measurements of acceleration to determine the helmet’s concussion tolerance. If a helmet has a severity index of higher than fifteen hundred, the helmet fails the test.
{¶ 11} With Lafferty observing, an employee at Capitol Varsity Athletic Company conducted two partial tests on the helmet in question, dropping it from a
{¶ 12} In deciding whether Lafferty’s testimony was proper, we begin our analysis with a consideration of
“A witness may testify as an expert if all of the following apply:
“(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
“(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
“(C) The witness’ testimony is based on reliable scientific, technical, оr other specialized information. To the extent that the testimony reports the result of
a procedure, test, or experiment, the testimony is reliable only if all of the following apply: “(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
“(2) The design of the procedure, test, or experiment reliably implements the theory;
“(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.”
{¶ 13} There is no question that Dr. Lafferty is a qualified expert who testified about a subject beyond the knowledge of lay persons.
{¶ 14} In Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, the United States Supreme Court discussed the question of when expert scientific testimony is relevant and reliable. In Daubert, the court was faced with the issue of whether certain scientific evidence was admissible in a birth defects case. The trial court, in excluding the expert testimony, relied upon Frye v. United States (D.C.App.1923), 293 F. 1013, which held thаt an expert’s opinion is inadmissible unless it has gained “general acceptance” in the relevant scientific community. Id. at 1014. The Daubert court expressly rejected this argument and reversed the granting of summary judgment.
{¶ 15} Appellees challenge Lafferty’s theory (that a football helmet can protect the neck) on several grounds. First, appellees argue that the NOCSAE standard tests the potential for head injuries only. Thus, they state that Lafferty’s theory is not predicated upon any recognized scientific test method for evaluation of potential injury to the neck.
{¶ 16} Contrary to appellees’ position, we find that appellants presented sufficient evidence to support Lafferty’s theory and his use of the NOCSAE test. In their brief in opposition to appellees’ summary judgment motions, appellants attached several documents, which were admitted into evidence, to support Dr. Lafferty’s opinion that injuries to the neck can be avoided with proper headgear and that the NOCSAE test applies to head and neck protection. For instance, according to a publication printed by NOCSAE, that organization initially recognized that safe helmets could result in fewer head and neck injuries. In fact, in 1973, when the NOCSAE test standard was first published, NOCSAE
{¶ 17} Appellees also argue that the NOCSAE test results are unreliable and have no relevance because Lafferty used another person to conduct the test and because Lafferty had poor recordkeeping skills. Whether Lafferty conducted the test himself is immaterial; appellants presented evidence that the test was conducted in a facility designed and equipped to conduct such tests. The technician’s credibility can be challenged at trial. Lafferty’s opinion, as well as the test protocol he used to conduct the NOCSAE test, is also an issue subject to attack upon cross-examination.
{¶ 18} Appellees further argue that the lower courts prоperly excluded Lafferty’s opinion, since his theory has not gained any acceptance in the scientific community and has not been subject to peer review. We flatly reject these arguments. Lafferty testified, in direct opposition to appellees’ expert, that there were publications supporting his theory that, properly used, a helmet can prevent the type of injury suffered by appellant. These conflicting views bring the issue of credibility into play. However, even if Lafferty’s opinion has neither gained general acceptance by the scientific community nor has been the subject of peer
{¶ 19} Appellees further attack Lafferty’s theory by arguing that the underlying premise, that the helmet lining was deflated at the time appellant was injured, was never supported by any evidence. Once again, there was conflicting evidence on this point. Lafferty’s premise, that the helmet lining was deflated, was supported by two Ace employees who stated, by affidavit, that when helmets with inflatable liners left Ace, there was no air in the liners. There was also evidence that the outer valve of the helmet had been sealed shut, which could prevent inflation. In contrast, appellees presented evidence that when the school received helmets reconditioned by Ace, they came to the school properly inflated. This evidentiary conflict should not be resolved by summary judgment; instead, it proves that genuine issues of material fact remain at issue.
{¶ 20} Likewise, the fact that appellees’ experts provide opinions that are diametrically opposed to Dr. Lafferty’s does not support the exclusion of Lafferty’s opinion. In reviewing a summary judgment motion, a trial court should not reject one expert opinion for another simply because it believes one theory over the other. As stated by one court, “In analyzing the admissibility of expert testimony, it is
{¶ 21} Furthermore, the reliability requirement of Daubert should not be used to exclude all evidence of questionable reliability, nor should a court exclude such evidence simply because the evidence is confusing. In re Paoli RR. Yard PCB Litigation (C.A.3, 1994), 35 F.3d 717, 744. Instead, there must be something that makes the scientific technique particularly overwhelming to laypersons for the court to exclude such evidence. Id. at 746. Thus, the “ultimate touchstone is helpfulness to the trier of fact, and with regard to reliability, helpfulness turns on whether the expert’s ‘technique or principle [is] sufficiently reliable so that it will aid the jury in reaching accurate results.’ ” DeLuca v. Merrell Dow Pharmaceuticals, Inc. (C.A.3, 1990), 911 F.2d 941, 956, quoting 3 Weinstein’s Evidence (1988) 702-35, Section 702[03].
{¶ 22} We find that appellants presented sufficient evidence to support the reliability of their expert’s theory under
{¶ 23} The question remains, however, whether the opinion of Dr. Lafferty can still be excluded because the NOCSAE testing procedures did not duplicate the conditions on the night of the accident. The trial court relied upon St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio RR. Co. (1935), 129 Ohio St. 401, 2 O.O. 396, 195 N.E. 861, to exclude Dr. Lafferty’s opinion on these grounds. We must determine whether this was an abuse of discretion.
{¶ 24} In St. Paul, a lumber company was destroyed by fire. Its insurers brought suit against a railroad company, alleging that cinders from its trains started the fire. The railroad company conducted laboratory еxperiments to help prove that its trains did not cause the fire. The results of the experiment were admitted into evidence, and the jury returned a defense verdict. The court of appeals and this court affirmed. We held that the experiments were admissible. We stated that “[e]vidence of experiments performed out of court, tending to prove or disprove a contention in issue, is admissible if there is a substantial similarity between conditions existing when the experiments are made and those existing at the time of the occurrence in dispute; dissimilarities, when not so marked as to confuse the jury, go to the weight rather than the admissibility of the evidence.” Id. at paragraph one of the syllabus.
{¶ 25} The trial court focused on the above language to exclude Dr. Lafferty’s opinion and the test he used to base his opinion upon. The court of appeals agreed. However, we believe that the lower courts were incorrect in holding that the NOCSAE test was inadmissible because the test did not duplicate conditions on the playing field at the time appellant was injured. Appellants never intended to use the test for that purpose. Instead, the NOCSAE test was being used to analyze whether the football helmet was able to perform adequately under conditions of use. The test was not relied upon to replicate the playing conditions or the way in which appellant was injured.
{¶ 26} In Leichtamer v. Am. Motors Corp. (1981), 67 Ohio St.2d 456, 21 O.O.3d 285, 424 N.E.2d 568, a similar argument was made but rejected by this court. That case involved products liability claims stemming from a pitchover of a Jeep. Plaintiffs alleged that the sheet metal supporting the roll bar was too thin and
{¶ 27} We are also persuaded by the rationale set forth by the Illinois court in Galindo v. Riddell, Inc. (1982), 107 Ill.App.3d 139, 62 Ill.Dec. 849, 437 N.E.2d 376, which involved an action against a different football helmet manufacturer. The court stated, “In general, experiments are incompetent as evidence unless the essential conditions of the experiment are shown to be the same as those existing at the time of the accident. However, when an [out-of-court] experiment is not represented to be a reenactment of the accident аnd it deals with one aspect or principle directly related to the cause or result of the occurrence, the exact conditions of the accident need not be duplicated.” Id. at 144, 62 Ill.Dec. at 854, 437 N.E.2d at 381.
{¶ 28} Under the facts presented here, it is virtually impossible to recreate the conditions under which appellant sustained his injuries. Quite obviously, if we were to hold that a test or experiment must exactly recreate the conditions present at the time an injury was sustained, a plaintiff would rarely be able to overcome an opponent’s motion for summary judgment. We are unwilling to require such proof. Instead, we agree with the rationale from the Leichtamer and Galindo decisions.
{¶ 29} While a determination as to the admissibility of expert testimony is a matter generally within the discretion of the trial judge and will not be disturbed absent an abuse of discretion, Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 24 O.O.3d 322, 436 N.E.2d 1008, that discretion is not unlimited. Here, since Dr. Lafferty’s opinions met the requirements of
II. Expert Opinions of Additional Witnesses
{¶ 30} The trial court relied on Zelenka v. Indus. Comm. (1956), 165 Ohio St. 587, 60 O.O. 524, 138 N.E.2d 667, to exclude the testimony of two of appellants’ other expert witnesses on the ground that their opinions were based solely upon the opinion of Dr. Lafferty. Zelenka held that “[a]n expert witness may not express his opinion based upon evidence which he has heаrd or read on the assumption that the facts supported thereby are true, where such evidence is voluminous, complicated or conflicting or consists of the opinions, inferences and conclusions of other witnesses.” Id. at syllabus.
{¶ 31} In this case, the trial court found that the opinions of Dr. Richard P. Borkowski and Dr. Melvin H. Rudov were inadmissible. Dr. Borkowski, a sports safety expert with thirty-four years of experience as a physical education teacher, football coach, and athletic administrator, offered his opinion on the issue of safety and whether various appellees followed basic safety precautions in regard to the proper use of the football helmet. In his affidavit, Borkowski stated that aрpellees failed to properly fit appellant with the helmet, failed to properly instruct him how his helmet should be fit, and failed to warn him of the need to properly inflate and maintain the appropriate pressure in the helmet’s air liners. Borkowski concluded
{¶ 32} Borkowski’s and Rudov’s above opinions were limited to their areas of expertise (sports safety and human factors). We find that the trial court erroneously relied upon Zelenka as a basis for excluding these witnesses.
III. Conclusion
{¶ 33} In order for summary judgment to be granted, it must be demonstrated that there is no issue as to any material fact, that the moving party is entitled to judgment as a matter of law, and that reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. In seeking summary judgment, the moving party bears the burden of demonstrating that there remain no genuine issues of fact. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801. Furthermore, the evidence must be construed in the light most favorable to the nonmoving party.
{¶ 34} In this case, we have found that the trial court improperly excluded appellants’ expert opinions. Since these opinions are in direct conflict with those
{¶ 35} Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings.
Judgment reversed and cause remanded.
RESNICK and PFEIFER, JJ., concur.
DOUGLAS, J., concurs in the syllabus and judgment.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
MILLER ET AL., APPELLANTS, v. BIKE ATHLETIC COMPANY ET AL., APPELLEES.
No. 96-1030
Supreme Court of Ohio
January 7, 1998
80 Ohio St.3d 607 | 1998-Ohio-178
{¶ 36} Because the lead opinion does not give proper deference to the trial judge’s role as gatekeeper in admitting or excluding expert testimony under Evidence Rules 104 and 702, I respectfully dissent.
{¶ 37}
{¶ 39} In Daubert, the United States Supreme Court ruled that although
{¶ 40} The need for the trial court to screen unreliable or ill-fitting expert testimony is well stated in the following Daubert passage:
“[T]here are important differences between the quest for truth in the courtroom and the quest for truth in a laboratory. Scientific conclusions are subject
to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incоrrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment—often of great consequence—about a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search of cosmic understanding but for a particularized resolution of legal disputes.” Daubert, supra, 509 U.S. at 596-597, 113 S.Ct. at 2798-2799, 125 L.Ed.2d at 485.
{¶ 41} Because Lafferty’s testimony fails to establish a reliable scientific basis for his conclusions, I believe that it was properly excluded under
{¶ 42} Lafferty states that inquiries into both the head and neck protection capacity of a helmet at different levels of inflation involve the change in a helmet’s capability to absorb energy. Lafferty, however, explains no scientific testing or theory to support his broader assumption that any attenuation of the force transmitted to the head from impact will cause a proportional attenuation of force to the C5 vertebra in an axial loading situation. Accordingly, there is no scientific evidence to validate Lafferty’s conclusion that the fifty percent difference in severity index values between Miller’s helmet with an uninflated inner bladder and the bladder inflated to 3.5 psi would translate into a corresponding attenuation of force to Miller’s C5 vertebra.
{¶ 43} Without the fifty percent attenuation value, the rest of Lafferty’s vaguely supported theory of causation would be of little help to a jury. In his report, Lafferty cites a Society of Automotive Engineers study5 to support a theory that if the force involved in Miller’s accident had been significantly6 above the threshold level of injury, Miller would have suffered more extensive damage to his cervical spine. Without attempting to determine the actual force transmitted to Miller’s C5 vertebra as a result of the collision or Miller’s actual injury threshold, Lafferty
{¶ 44} Considering only the adequately grounded scientific methods and principles underlying Lafferty’s conclusions, there remain two loosely quantified values thаt Lafferty uses in concert to calculate that an inflated helmet would have protected Miller from injury. Accordingly, the calculation and its resulting conclusion that Miller’s injury would have been avoided if his helmet had been inflated properly are based more on conjecture than any scientific principle to which
{¶ 45} I believe that Judge Posner, while writing for the Seventh Circuit Court of Appeals, aptly delineated the proper gatekeeping role of trial judges in admitting or excluding scientific evidence on grounds of reliability in Rosen v. Ciba-Geigy Corp. (C.A.7, 1996), 78 F.3d 316, 318-319:
“[A trial judge] asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist. * * *
“* * * The оbject * * * [is] to make sure that when scientists testify in court they adhere to the same standards of intellectual rigor that are demanded in their professional work. * * * If they do, their evidence (provided of course that it is relevant to some issue in the case) is admissible even if the particular methods they have used in arriving at their opinion are not yet accepted as canonical in their branch of the scientific community. If they do not, their evidence is inadmissible no matter how imposing their credentials. * * *
“* * * “[T]he courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.”
{¶ 46} Because the evidence demonstrates that the trial court did not err in excluding Lаfferty’s expert testimony and, without that testimony, Miller did not produce sufficient evidence of causation to withstand summary judgment, I would affirm the court of appeals.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing dissenting opinion.