Expert Witness Blog
Plaintiff sued defendant alleging the visit to defendant’s store caused her infections. Plaintiff hired two infectious disease expert witnesses to assist in her case. Defendant filed a motion for summary judgment which included a section on excluding these experts. The court denied the motion.
Facts: This case (Susan Welch Kelly et al v. Bare Escentuals Beauty, Inc. et al – United States District Court – Southern District of Ohio – September 15th, 2017) involves an alleged products liability claim. The plaintiff (Ms. Kelly) visited the defendant’s store in Polaris Fashion Place and had a makeover performed by one of the employees. Two days after the makeover was performed, Ms. Kelly developed in her eye. She then developed boils on her chin and forehead and visited the emergency room. After visiting her primary care physician, she was diagnosed as having Methicillin-resistant Staphylococcus aureus (MRSA). Ms. Kelly sued Bare Escentuals alleging that the makeover caused her injuries. In order to prove her case, she hired Dr. Kurt Stevenson and Dr. Larry Rumans (infectious disease expert witnesses). Bare Escentuals filed a motion for summary judgment arguing that Ms. Kelly’s experts’ opinions should be excluded under Daubert.
Discussion: Both experts opined that Ms. Kelly’s visit to Bare Escentuals and the ensuing makeover caused her to contract MRSA. After learning from Ms. Kelly that she had never had any skin issues before, nor MRSA, Dr. Stevenson utilized his research on MRSA, his experience treating the infection, his knowledge on how MRSA is transmitted, the location of the infection, and the proximity between her visit to Bare Escentuals and came to the conclusion that the most likely source of the MRSA was the visit to the store. In addition, Dr. Rumans based his opinion on knowledge of MRSA transmission, reviewing professional literature on MRSA and studying Ms. Kelly’s medical records and deposition testimony. Neither expert was able to test the samples that were used on Ms. Kelly as these materials would have been long used up.
Bare Escentuals argues that these opinions should be excluded because the experts did not provide a scientifically reliable or valid basis for their opinions. They also state that the experts relied solely on a temporal relationship between the infection and her visit to Bare Escentuals. They argue that the experts did not consider key facts or possibilities, such as her significant medical history, her membership at the YMCA, or that she owned pets that could have been infected with MRSA.
The court opined that since the experts were not able to test the actual products used on ms. Kelly during her makeover, they relied on their experience, knowledge, Ms. Kelly’s medical history, the location of the infection, and the temporal relationship of the visit to Bare Escentuals and her outbreak. While Bare Escentuals raises valid points about the information that was not considered, this is best done during cross examination, not at this stage of the case.
Conclusion: The summary judgment motion which includes the question of excluding the expert witness testimony was denied.