Michigan Rejects Challenge to Expert Testimony When Witness Gave Lay Testimony of a Technical Nature

Written on Thursday, October 3rd, 2019 by T.C. Kelly
Filed under: ExpertWitness

When Shawn Eichler was eight, he tried to do a pullup from a bar at the top of a dumpster. He instead pulled the dumpster over. The dumpster landed on top of Shawn, causing serious injuries.

Shawn sued the waste management company that supplied the dumpster to his neighbor. He alleged that his injuries were caused by the company’s negligent decision to place the dumpster on grass rather than a firm concrete surface. He also contended that the dumpster design was inherently dangerous, given that it could be tipped over by an 80-pound boy.

The case was tried to a Michigan judge. After hearing evidence for three days, the judge agreed that the design and placement of the dumpster made it inherently dangerous and the company’s negligence caused Shawn’s injuries. The dumpster company challenged the judgment on appeal, arguing that the evidence failed to establish its negligence.

Dumpster Safety Testimony

Shawn relied in part on the testimony of Steven Ziemba. For almost two decades, Ziemba worked as a safety consultant, performing accident investigations for insurance companies. His degree is in chemical engineering.

Ziemba testified that the Consumer Product Safety Commission (CPSC) has determined that “slant-side” dumpsters are unstable. Ziemba also testified that a CPSC fact sheet showed that 13 children had died due to unstable slant-side dumpsters.

The dumpsters were banned in 1978, although owners were allowed to retrofit them with bracing extensions to enhance their stability. That modification was never performed on the dumpster that tipped over and injured Shawn.

Ziemba testified that everything has a center of gravity. Shifting the center of gravity can cause a product to become unstable. The center of gravity of a rectangular bin would normally be in its center. The slant-side bin, however, had extra weight on the edge that shifted its center of gravity from the center to a point closer to the side. That design reduced the stability of the bin. Adding the 80-pound weight of a child to the side was sufficient to cause the bin to tip over.

The CPSC safety standards require bins to remain stable when they are “pulled down” with 191 pounds of force. Ziemba opined that an 80-pound boy should not be able to tip over a bin by pulling down on its edge. Ziemba examined similar bins in the community and determined that even without extensions, the bins could not easily be tipped with 75 pounds of weight when they were on concrete surfaces. Placing the bin on a soft surface, however, made it much easier to tip.

Challenge to Ziemba’s Testimony

The waste management company contended that Ziemba was not qualified to render an expert opinion. His education was in the field of chemical engineering and Ziemba had no training in the area of dumpster design. In addition, Ziemba had not recently been certified as a safety professional and had never been certified as an expert in ergonomics.

The appellate court noted, however, that Ziemba was not asked to testify as an expert. He instead provided fact testimony as a lay witness based on his own perceptions and personal knowledge. The fact that his perceptions relied on elements of scientific or technical knowledge did not preclude him from offering lay testimony, at least if the testimony was not “overly dependent” on scientific knowledge.

The court concluded that Ziemba based his testimony on personal knowledge because he conducted tests to determine the effort required to tip over a slant-side dumpster on concrete and grass surfaces. Some of Ziemba’s testimony, however, described CPSC findings and therefore was not based on personal knowledge. Those findings may have been independently admissible as determinations made by a government agency, but the court did not address that question.

The court also held that Ziemba’s testimony would not be reversible error even if he testified as an expert. The court did not explain why that was true. The criminal case it cited in support of that holding addressed a police officer who gave lay testimony that probably should have been given by an expert. The court in that case split the baby in half, deciding that it could be “reasonably argued” that lay testimony was admissible while making the dubious conclusion that the officer was an expert in the behavior of sexual assault victims because he has interviewed many of them. How that decision supports the admission of Ziemba’s testimony is unclear.

Lessons Learned

It was obvious to the trial and appellate courts that a dumpster should not tip over when a small boy pulls on it. The unsafe design, combined with the placement of the dumpster on an unstable surface, made liability clear. The appellate court’s decision was likely influenced by its unspoken belief that expert testimony is not required to explain the obvious.

Liability in most negligence cases involving unsafe products is not so obvious. Given the gray area between expert and lay testimony, it may have been better for Shawn to have presented testimony from a safety engineer. Alternatively, it may be that Ziemba’s experience as a safety consultant qualified him to give relatively simple testimony about dumpster design, even if he had no experience in product engineering. If so, Shawn probably needed to make a better record of Ziemba’s qualifications.

Using expert rather than lay testimony overcomes the restriction placed on lay witnesses to confine their opinions to perceptions that are based on personal knowledge. While the Eichler decision did justice, the lesson to learn is that lawyers should always try to find an expert who is well qualified to testify when expert testimony would make it easier to prove or disprove liability.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.