Expert Witness Blog
Plaintiff filed suit against the defendants related to a products liability claim. The plaintiff hired a Professional Engineering Expert Witness to provide testimony. The defendant filed a motion to exclude this expert from testifying. The court granted the motion in part and denied the motion in part.
Facts: This case (Nemes et al v. Dick’s Sporting Goods, Inc. – United States District Court – Southern District of New York – August 23rd, 2019) involves a products liability claim. The plaintiff was injured while operating a modern bow-and-arrow device known as a Barnett Lady Raptor FX (“Lady Raptor”). The plaintiff alleges that the Lady Raptor did not have proper finger guards which could have created a barrier between the foregrip and the flight track. This finger guard would have blocked the plaintiff’s thumb from going into the bow string path. The plaintiff hired Brian O’Donel (Professional Engineering Expert Witness) to provide expert witness testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: O’Donel is a professional engineer, a facilities engineer, and a machinery and machine process safety expert and has been an associate with Robson Forensic, Inc since 2009. In addition, O’Donel has a bachelor’s degree in Science and Mechanical Engineering from Pennsylvania State University and numerous OSHA certifications.
O’Donel testified that the Lady Raptor did not have adequate thumb guards or barriers to prevent the plaintiff’s injury. The court notes that O’Donel reviewed 23 items in order to come to his conclusions.
The defendants argue that O’Donel’s analysis and testing of his hypothesis only consisted of handling the crossbow, observing others handling the crossbow as well as examining other crossbows. In addition, the defendants argue that he did no testing or analysis in determining the size or shape that the barrier guard should be to prevent injury. Thus, they allege that O’Donel failed to come up with the necessary feasible alternative design.
First, the court opines that O’Donel is qualified to render him as an expert in this case. In addition, the court opines that while O’Donel’s expertise and methodology allow him to testify on two elements of a defective design claim, his methodologies are not reliable for him to testify about a second element regarding a feasible alternative.
Regarding the substantial likelihood of harm element of a products liability claim, the court agrees with the plaintiffs that the defendants mischaracterize O’Donel’s methodology.
However, the court opines that it agrees with the defendants in that O’Donel did not provide a feasible alternative to design the product in a safe manner.
Conclusion: The motion to exclude the expert witness testimony of Brian O’Donel is granted in part and denied in part.