Expert Witness Blog
Plaintiffs filed a class action against defendants related to the effectiveness of their pest control products. Plaintiff hired an insects & pests expert witness to provide testimony. The defendants filed a motion to exclude. The court granted the motion.
Facts: This case (Steigerwald v. BHH, LLC et al – United States District Court – Northern District of Ohio – November 29th, 2016) involves a consumer class action relating to electronic pest control devices. The complaint alleges that the defendants manufacture, market and distribute these devices that supposedly repel pests from the user’s home, but they do not do so. To be sure, the scientific literature shows that these products do not any effect on pests and that the defendants knew this. In order to prove their case, the plaintiffs hired Richard Kaee (Insects & Pests Expert Witness), who opined that based on the scientific literature and his own testing, the ultrasonic pest repellers do not repel cockroaches, ants, spiders, and mice in any manner.
The defendants have filed a motion for summary judgment, which includes a section on the exclusion of the testimony of Dr. Kaae. They state that he doesn’t have the relevant experience to testify in this case. In addition, they state that his opinions are not based on science and that his field tests were not scientific nor relevant.
Discussion: First, the defendants assert that Dr. Kaae does not have the requisite experience with ultrasonic pest repellent devices. While he does have a PhD in pest management-entomology and has taught in the area of pest management, he did admit in deposition that he has had no prior experience with the pest repellers that are the focus of this case as well as having no experience with any ultrasonic insect or rodent repellent. The plaintiff retorts that although he has no experience with ultrasonic pest repellers, he is qualified because he has studied insects and pest management for over 50 years.
The court opined that they will assume that Dr. Kaae is qualified to offer expert witness testimony based on his years of experience. The defendants now maintain that the bases for Dr. Kaae’s conclusions are not scientific for five reasons: 1) Kaae’s field tests were conducted on Argentine ants only and not other species that the plaintiffs purport were not repelled by the devices; 2) Even though Kaae testified that the only valid method of the testing the effectiveness of the devices wads to use two infested houses, he did not conduct his tests in this fashion; 3) The field tests that he conducted were contrary to the product’s instructions for proper use of the product; 4) Kaae failed to use a control to determine whether the device repelled ants; 5) Because Kaae developed the tests only for use in this case, it is not generally accepted nor were they reviews by other experts.
The court agreed with the defendants on all five arguments and declared that Dr. Kaee’s expert witness testimony should be excluded.
Conclusion: Defendant’s motion to exclude the expert witness testimony of Dr. Kaee is granted.