Expert Article Library

Case Name: Smith v. Sears Roebuck & Co. (Click here for the full text of the case)

Court: United States Court of Appeals for the 10th Circuit

Date: June 16, 2004

Expert: Safter Consultant. Gene Litwin

Issues: The reliability and relevance of an expert’s opinion and the court’s classification of him as an “expert for hire.”

Summary of case: Plaintiff’s 4-year-old son was trapped under a garage door manufactured and sold by the defendants. Plaintiff sued defendants for the wrongful death of her son alleging product liability.

Role of the expert: Mr. Litwin testified that the garage door’s design was defective and that this defect caused the death of plaintiff’s son. Mr. Litwin testified that the reverse mechanism on the garage door opener tended to fail when not used frequently enough.

Challenges to the Expert's testimony: The 10th Circuit ruled that the lower court did not abuse its discretion in ruling the testimony inadmissible. Citing Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the court correctly preformed its gate keeping duty in ruling that Mr. Litwin was an “expert for hire.” The Court of Appeals ruled that the district court correctly struck Mr. Litwin’s testimony because a) he did not test his theory, b) his theory ignored the testimony of Ms. Smith which eliminated the cause of the malfunction under his theory, c) he did not rule out any other of the possible causes of the accident, and d) he did not show why the cause he proposed was probable while other possible causes were unlikely.

Summary prepared by B. Kass, Student, The University of California Hastings College of the Law