Last week, the federal 6th Circuit Court of Appeals issued an interesting ruling on expert witness testimony when it approved of an expert who directly contradicted the party who hired him. In Lee v Smith & Wesson Corp., the 6th Circuit determined that if an expert witness satisfies the Federal Rule of Evidence 702 qualifications, as articulated in Daubert v Merrell Dow, then testimony that conflicts with his client does not preclude his involvement in the trial.

Expert Witness Contradicts Plaintiff in Personal Injury Lawsuit

In 2006, plaintiff Mark Lee was seriously injured when his Smith & Wesson revolver discharged improperly, causing damage to his face, eye, and nose. While shooting his revolver, Mr. Lee fired three times, with the third shot causing an injurious blast to expel from the weapon into his face. Lee filed a personal injury lawsuit against the gun manufacturer, and testified that before the third shot the gun cylinder swung open – causing the blast that knocked off Lee’s safety glasses and resulted in his facial injuries.

To support his case, Lee reached out to mechanical engineer Roy Ruel as a gun expert witness. Ruel was asked to examine the revolver and testify that it was the cause of Lee’s injuries. Although Ruel concluded that the gun was faulty in its manufacture and design, he determined that the gun cylinder did not swing open as Lee had testified. Instead, Ruel concluded that the accident occurred because the cylinder did not fully lock into place between shots, resulting in high pressure gas expelling from the revolver into Lee’s face. Finding that the gun’s design allowed for the trigger to be pulled even with the cylinder not fully closed, Ruel concluded that Lee’s injuries were created by a Smith & Wesson design defect.

Trial Court Dismissed Contradictory Expert Testimony

Smith & Wesson requested the trial court dismiss Ruel’s testimony because of the critical inconsistencies between his expert opinion and Lee’s account of the accident. The district court granted the motion, and determined that Ruel’s expert testimony failed to satisfy the relevancy requirement of the Daubert test for the following reasons:

• Lee testified he had no difficulty firing the gun the third time, but Ruel testified that the gun had not fired immediately because the cylinder did not close fully
• Lee claimed the cylinder swung open after firing, but Ruel concluded that it was closed – however not locked into place
• Lee’s demonstrated hand grip on the gun showed that he did not touch the thumb latch, but Ruel stated that Lee pushed on the thumb latch prior to pulling the trigger

The differences in victim and expert witness testimony were not minor – in fact Ruel’s expert testimony drastically altered the account of the incident that caused Mr. Lee’s injuries. After the trial court determined that the inconsistent expert would be excluded, Lee dismissed the case contingent on the 6th Circuit’s opinion on Ruel’s ability to offer expert testimony.

6th Circuit Permits Expert Witness Contradiction

In its review of the case, the Court of Appeals for the 6th Circuit looked to the text of Daubert for guidance and pointed out that, “The Rule 702 inquiry is a flexible one… [and its focus] must be solely on principles and methodology, not on the conclusions that they generate.” With that mindset, the court determined that Mr. Ruel had adequately demonstrated that his opinion was relevant to the issues at trial, and was therefore admissible despite being contradictory to Lee’s account. In preparing his expert report, Ruel analyzed the gun, reviewed multiple accounts of Lee’s accident, read Lee’s medical records, and looked over several photos of the revolver immediately after the incident. Finding that “a party is not precluded from proving his case by any relevant evidence, even though that evidence may contradict the testimony of a witness previously called by him,” the 6th Circuit looked at Ruel’s testimony in a vacuum and determined that it was relevant to determining the cause of Lee’s injuries and should have been admitted.

The 6th Circuit concluded that a reasonable jury could determine that Mr. Lee may have been wrong in his account of the incident, but Smith & Wesson would still be liable for the cause of his injuries based on Ruel’s expert testimony. An expert witness questioning or contradicting testimony he is called upon to support is not unheard of, and the 6th Circuit’s analysis in Lee v Smith & Wesson reminds attorneys and judges that the Daubert criteria, independent of other testimony, controls the analysis of the admissibility of expert testimony.