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Oct 26 2016

Fifth Circuit Says Expert Failed to Show that Alternative Design Would Have Prevented Injury

October 26, 2016 (Houston)

James SmithBy James Smith – “Environmental Alert” (Schirrmeister, Diaz-Arrastia, Brem LLP)

The United States Court of Appeals for the Fifth Circuit upheld the dismissal of a case alleging that poor design caused an automobile gas tank to rupture during a crash, which led to a fire that killed one of the passengers.  In Sims v. Kia Motors, the 5th Circuit determined that the expert for the Sims family failed to support the conclusion that an alternative design using a fuel tank shield would have prevented the fire and resulting death.  While the case also addressed other issues, this part of the case highlights the need for experts to thoroughly connect each segment of their work.

Expert Did Not Test the Alternative Design

The expert did not build a prototype, nor did the expert provide any detailed engineering calculations to show how the shield would have prevented the rupture and fire.  The 5th Circuit said that to prove causation due to failure to employ a safer alternative design, the alternative design must be tested to demonstrate that the alternative would have prevented the injury.

Although the “testing” need not necessarily be via a physical prototype, at a minimum testing must be done through mathematical calculations.  The expert provided no “testing” to support the conclusion that the shield would have absorbed or redirected the energy from this specific type of crash, in order to prevent the rupture and fire.  Excluding this unsupported opinion from evidence was proper.

Another Case of Not Connecting the Dots

A past Alert discussed how experts could not prove that working with gasoline could cause leukemia, because they could not connect gasoline use to literature linking benzene to leukemia.

In the same way, the expert for the Sims family testified that in his opinion the shield would have prevented the rupture and fire, but he had no physical or calculation based “testing” to support that opinion.  The expert could not “connect the dots” between the alternative design using a shield and prevention of this injury.  The expert’s opinion, without support via testing, was properly excluded.

Alternative Design Claims Must Address Causation and Feasibility

Under Texas law, to establish that a safer design could have prevented the injury, the claimant must show that the alternative design:

  • would have prevented or significantly reduced the risk of the claimant’s injury without substantially impairing the product’s utility; and
  • was economically and technologically feasible by the application of existing or reasonably achievable scientific knowledge.

Both of these elements must be proved, generally by rigorous expert testimony.  As to either element, a mere conclusion not adequately supported, even if by a qualified expert, will result in a dismissal.

For a copy of the Fifth Circuit’s opinion, click here.

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