14.11 - A. Untested Or Untestable Theory
| Jurisdiction | New York |
A. Untested or Untestable Theory
1. Stanczyk v. Black & Decker, Inc.2447 Expert’s proposed alternative design of a guard for the allegedly defective saw rejected by the court because the expert “offered no testable design to support his concept. And the history of engineering and science is filled with finely conceived ideas that are unworkable in practice.”
2. Allen v. Minnstar, Inc.2448 Proposed alternative guard design rejected by the court: “[M]ere existence of prototypes does not obligate manufacturers to implement such devices in their products.”
3. Porter v. Whitehall Laboratories, Inc.2449 Expert’s opinion that kidney failure was caused by ibuprofen rejected because, although theory could be tested, it had not been.
4. Pestel v. Vermeer Manufacturing Co.2450 Court rejected guard proposed by plaintiff’s expert where expert merely welded two guards from a different model cutter together, did not look at other manufacturers’ cutters, did not conduct a patent search for similar guards, did not test his proposed guard, and the concept of the guard was still evolving.
5. Brooks v. Outboard Marine Corp.2451 Untested theory of causation cannot be presented to the jury.
6. Dancy v. Hyster Co.2452 Court rejected expert opinion that a “permanently located open-mesh guard on the right side of the lift would have prevented [plaintiff’s] injury. . . . I am confident such guards can be designed which will not affect the utility of the lift truck and which will not add any significant cost to the machines.” Plaintiff’s expert did not test his theory, had not seen such a device on any similar machine and had not designed the device he suggested would have prevented plaintiff’s injury.
7. Jaurequi v. Carter Manufacturing Co.2453 Plaintiff, injured when he was sucked into a combine, sued the manufacturer, alleging improper warning and design theories. Design changes proposed by plaintiff’s expert rejected where expert did not attempt to construct or even to draw his proposed “awareness barriers.” He did not test the alternative to determine its utility as a safety device or its compatibility with the corn head’s proper function.
8. Demaree v. Toyota Motor Corp.2454 Proposed alternative design for airbag rejected where expert did not perform any crash or sled tests, nor did he identify any tests performed by anyone else to support a deployment threshold of 20 to 25 mph. He performed no computer modeling, finite element analysis or other “virtual” testing of the effect of air bag deployment at the threshold he advocated. Nor did he perform any mathematical calculations or other kind of quantitative analysis supporting his theory.
9. Clark v. Takata Corp.2455 Expert’s opinion that a properly functioning seat belt would have prevented plaintiff’s head from striking the roof of the car rejected where expert did nothing more than inspect the vehicle, make certain measurements and review the medical records. The expert performed no tests or reenactments; he did not attempt to duplicate the forces acting on the belt; he had no opinion about those forces; and he did no testing to see how far a person of plaintiff’s size would move off the seat if the belt were latched. The only basis for his opinion of no injury with a fastened belt was that the “belt would hold him down”—a statement based entirely on his “experience.”
10. Kaufman v. Motorola Inc.2456 Daubert was not intended to exclude new science per se, but only if it is untested.
At first blush, the conclusion that the proportional trading model does not pass Daubert muster may appear to implicate the flat earth theory, under which one could assume that the first person to conclude the world was round would have been considered heretically unscientific. The difference, of course, is that the round earth theory was subject to testing, and proven correct. Perhaps without such proof the first person to conclude that the world was round would not have been allowed to so testify before a jury if Daubert had been the law of whatever land that person lived in.
11. Lauzon v. Senco Products, Inc.2457 The circuit court reversed the district court, which held that expert testimony that nailer misfired or double-fired should be excluded when expert tried to duplicate the events of the accident and was unable to do so.
12. Wheat v. Pfizer, Inc.2458 Although plaintiff’s expert hypothesized that a combination of two drugs was responsible for plaintiff’s illness, no study of the combined effects of the two drugs had been done.
13. Mannix v. Chrysler Corp.2459 Expert testimony rejected and case dismissed where expert
[n]ever evaluated the design of any portion of the vehicle but nevertheless “formed an opinion that there was a defect in the car and . . . did not carry that investigation through to the point of determining whether that defect was a design defect or a manufacturing defect or a combination thereof.” This response, conveying as it plainly does, that whatever opinion he will ultimately express as to the cause of the fire would be imaginatively speculative, without more, would compel granting the motion to disqualify this witness.
14. Hartman v. EBSCO Indus.2460 “Howard did not perform any kind of testing to prove that the 209 breech plug is more likely to retain latent embers.”
15. Heer v. Costco Wholesale Corp.2461:
In this case, Mr. Stolz claims he applied generally accepted scientific principles to reach the conclusion that a...
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