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March 13, 2018 Articles

Plaintiffs’ Experts’ Opinions Found Unreliable

The appeals court’s careful analysis provides litigators with touchstones for selecting experts whose opinions will pass muster

by Michael R. Lied

Unreliable expert opinions doomed the plaintiffs’ case in Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771 (7th Cir. 2017). The appeals court’s careful analysis provides litigators with touchstones for selecting experts whose opinions will pass muster.

Arun Gopalratnam, a college student, purchased a laptop computer manufactured by Hewlett-Packard Co. (HP). The laptop contained a battery pack manufactured by defendant DynaPack Technology Corp., which in turn held three cylindrical shaped lithium-ion battery cells manufactured by defendant Samsung SDI Co., Limited. About one year later, a major fire killed Arun in a basement bedroom of the home of his parent.

Wisconsin’s Department of Criminal Investigation was assigned to conduct an investigation. Special Agent Martinez excluded multiple possible sources of the fire, including the home’s electrical and gas meters, electrical distribution panels, and gas-fueled furnaces, as well as the electrical plugs, light switch, and ceiling light fixture in the bedroom. However, Martinez could not ascertain the fire’s ultimate cause.

Arun’s parents filed suit against HP and its insurer, alleging negligence, strict products liability, and breach of warranty. They claimed that a defective battery cell in Arun’s laptop caused the fire. HP filed a third-party complaint against DynaPack and Samsung. The plaintiffs later amended their complaint to include DynaPack and Samsung as defendants.

The plaintiffs supported their causation theory with two expert witnesses. The plaintiffs retained Dr. Daniel H. Doughty, who holds a Ph.D. in inorganic chemistry, as an expert on “battery safety,” and Michael F. Hill Sr., a retired certified fire investigator with the Illinois Chapter of the International Association of Arson Investigators, to opine about the “cause and origin” of the fire.

Doughty noted that two of the laptop cells found on the bedroom mattress (Cell B and Cell C) had retained their cylindrical dimensions and internal contents. However, the third laptop cell (Cell A) had ejected its contents and had warped. Doughty opined that the appearance of Cell A was typical for a cell that had experienced severe “thermal runaway,” which is the condition when the rate of heat generation inside the battery cell is greater than the rate of heat dissipation.

Doughty outlined several potential causes of thermal runaway: (1) electrical abusive conditions (such as an external short circuit, overcharge, or over-discharge); (2) mechanical abusive conditions (such as shock, vibration, or penetration); (3) high-temperature abusive conditions, including heat from an external fire; and (4) flaws from within the cell that cause an internal short circuit.

Doughty excluded electrical abuse and overheating from an external fire. He concluded that the rate of release of the stored energy in Cell A was much more rapid than in the other cells and that the very rapid gas generation that created such a substantial pressure rise was only consistent with an internal short circuit that led to thermal runaway. Doughty concluded that the internal fault was caused either by a manufacturing defect in the cell that caused an internal short circuit or by a failure of the computer’s control/safety circuity to function as designed, causing an internal short circuit in the cell.

Hill, the fire investigator, concluded that (1) the fire originated on the top of the bed in the basement bedroom, (2) the most probable ignition source was the laptop battery, and (3) the fire was accidental.

The defendants moved to exclude the testimony of both Doughty and Hill under Federal Rule of Evidence 702 and Daubert. The district court granted the defendants’ motions. Although the court found both Hill and Doughty sufficiently qualified, it nonetheless deemed their opinions unreliable. Because the court excluded their expert testimony, the plaintiffs could not support their claim that a defective lithium-ion battery cell led to their son’s death. Therefore, the court granted summary judgment in favor of the defendants. The plaintiffs took an appeal.

The appeals court observed that any assessment of the admissibility of expert witness testimony begins with Federal Rule of Evidence 702 and Daubert. This is true even when, as in this case, jurisdiction rested on diversity.

The district court must engage in a three-step analysis before admitting expert testimony. It must determine (1) whether the witness is qualified, (2) whether the expert’s methodology is scientifically reliable, and (3) whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. The first and third steps were not at issue. However, the district court concluded that both expert opinions were unreliable.

Courts should evaluate the reliability of an expert’s testimony by considering, among other factors, (1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review; (3) whether the theory has been evaluated in light of potential rates of error; (4) whether the theory has been accepted in the relevant scientific community; (5) whether “maintenance standards and controls” exist; (6) whether the testimony relates to “matters growing naturally and directly out of research they have conducted independent of the litigation” or was developed “expressly for purposes of testifying”; (7) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion; (8) whether the expert has adequately accounted for obvious alternative explanations; (9) whether “the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting”; and (10) whether “the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.”

According to the appeals court, this list is neither exhaustive nor mandatory. There are many different kinds of experts and many different kinds of expertise. The test of reliability, therefore, is flexible.

Rule 702’s reliability elements require the district judge to determine only that the expert is providing testimony that is based on a correct application of a reliable methodology and that the expert considered sufficient data to employ the methodology.

An expert may provide expert testimony based on a valid and properly applied methodology and still offer a conclusion that is subject to doubt. It is the role of the jury to weigh these sources of doubt. The focus, therefore, must be solely on principles and methodology, not on the conclusions that they generate.

It is well established that issues related to expert opinion testimony are matters of law to be determined by the trial judge. Whether the district court applied the Daubert framework properly is a question reviewed de novo, but an appellate court reviews the ultimate decision to exclude or admit expert witness testimony for an abuse of discretion.

The party seeking to introduce expert witness testimony bears the burden of demonstrating that the expert witness testimony satisfies the Daubert standard by a preponderance of the evidence.

During his deposition, Doughty explained that his opinion that an internal fault led to the failure of Cell A was based on three facts:

1.  Only Cell A ejected its internal contents, whereas Cells B and C, as well as a cell phone battery, did not.

2. Cell A warped into an elliptical shape, whereas Cells B and C, as well as the cell phone battery, retained their dimensions.

3.  Cell A acted as a projectile.

Doughty’s reliability failed when it came to the method by which he derived conclusions from these underlying events. In his report, Doughty determined that the cells’ differential appearance suggested that one cell—Cell A—had a different failure mechanism. This inference, however, relied almost entirely on Doughty’s premise that the exposure of battery cells to external fire (as opposed to an internal fault) causes predictable results among the cells.

However, Doughty’s central underlying premise—that exposure of cells to external fire causes predictable, uniform results—was not only unsupported but in fact contrary to generally accepted battery science. The defendants’ own battery expert testified as follows:

Q. Why was the thermal runaway of Cell A more energetic given that it should have been at the same or similar charge as Cell B and C?

A.  . . . [W]hen you expose cells to a fire there’s a certain amount of randomness or stochasticity to the failure event. . . . [T]here is a certain amount of randomness to how batteries fail when they’re exposed to fire, and especially an uncontrolled event [such as the fire at issue here]. . . .

Contrary to Doughty’s assertion, various underlying UL tests stand for the countervailing proposition that individual cells can react differently to external fire; some may expel their contents, while others may not. The central premise underlying Doughty’s conclusion was thus faulty. Without this premise, Doughty could not reliably draw the inference that the differential appearance between the cells in Arun’s laptop was caused by a different failure mechanism. In turn, Doughty’s ultimate conclusion—that an internal flaw created the fire hazard that led to Arun’s death—collapsed.

According to the appeals court, what mattered was that Doughty failed to account for other possible explanations in arriving at his conclusion. The court cited the advisory committee’s note to Federal Rule of Evidence 702, finding whether the expert has adequately accounted for obvious alternative explanations to be relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact.

Even less reliable was Doughty’s second opinion—that the internal fault in Cell A was specifically caused by a manufacturing defect in the cell or a failure in the computer’s electrical circuitry. During his deposition, Doughty acknowledged that, even though electronic manufacturing processes undergo continuous development, he had never been to a laptop manufacturing plant and had not visited a lithium-ion battery manufacturing facility since 2003 or 2004. He further admitted that, aside from what he read in the depositions of the defendants’ employees, he had no independent knowledge of the defendants’ individual manufacturing processes, including their quality-control measures. Indeed, he could not even identify the specific plant where the battery cells in this case were originally manufactured. Despite concluding that a manufacturing defect led to the alleged internal fault, Doughty could not provide details as to what the specific defect was, why it transpired, when it occurred in the manufacturing process, or even where such manufacturing took place. Rather, Doughty simply opined that, because several manufacturing processes “can cause” an internal short circuit, such must have occurred here. This was simply too speculative to pass muster under Daubert and Rule 702.

The court next turned to Hill. Based on his written report and deposition testimony, the court could characterize Hill’s expert opinions as follows:

1. The fire originated on the top of the bed in the basement bedroom of plaintiffs’ home.

2. The “most probable” cause of the fire was the laptop battery.

3. The fire was accidental.

The district court’s ruling could be affirmed simply by examining Hill’s second opinion regarding the cause of the fire. Hill proceeded by a process of elimination. After excluding the possibility that the fire was caused by the home’s electrical circuitry, the ceiling light fixture located above the bed, a printer found along the bedroom’s western wall, or Arun’s cell phone, he came to rest on Arun’s laptop battery, which he concluded was a viable fire source.

During his deposition, however, Hill acknowledged that he was not an electronics or battery expert. Instead, those portions of his report that discussed the laptop batteries as a cause of the fire relied entirely on the work of Doughty.

As a general matter, there is nothing objectionable about an expert relying on the work a colleague. However, an expert cannot testify about opinions that rely on the opinion of another expert simply because the other is an expert. Under Rule 703, the facts or data relied on must themselves be the kind that experts in the particular field would reasonably rely on in forming an opinion on the subject. As discussed above, Doughty’s own expert opinions were not sufficiently reliable to pass Rule 702 strictures. Thus, the plaintiffs could not reasonably admit through Hill what they could not offer through Doughty.

Once Hill’s causation theory was precluded, his remaining opinions—regarding the fire’s place of origin and the extent to which it could be classified as accidental—were rendered moot. The appeals court agreed with the district court’s finding that, because the inner workings of a laptop and its components, including the battery pack and its cells, are highly technical, expert testimony was necessary for the plaintiffs to prevail on their claims. Without Doughty’s and Hill’s causation theories, the plaintiffs could not prove that one of the defendants’ products caused the fire. Therefore, summary judgment in favor of the defendants was appropriate.

Michael R. Lied is with Howard & Howard Attorneys PLLC in Peoria, Illinois.

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