Warnings, Testing and Design Expert Witness Excluded for Lack of Expertise

 

In Bachtel v. Taser International, Inc. the US District Court for the Eastern District of Missouri has ruled that an electrophysiology expert witness was not qualified to testify about the warnings, testing and design of the TASER Model X26. The Court Reasoned:

Defendant argues [name of expert] should not be permitted to testify as an expert on the issues of warnings, testing, or design under Rule 702 since [name of expert] is not qualified to offer such opinions and since [name of expert] opinions are not based on reliable principles and methods. In response, Plaintiff asserts that [name of expert] “is one of the world’s foremost authorities on electrophysiology,” a subspecialty of cardiology that focuses on the electrical impulses that regulate heart rhythm. (Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Exclude Certain Opinions of [name of expert] (“Plaintiff’s Memo in Opposition”), ECF No. 60, p. 3). Plaintiff also argues that since Defendant failed to issue any warnings “to avoid chest shots due to risk of inducing cardiac arrest from ventricular fibrillation,” an expert “with technical knowledge and expertise on warnings is not required.” (Id., pp. 11–12). Nonetheless, Plaintiff argues [name of expert] is qualified to render opinions on warnings, testing, and design due to “his extensive academic and professional experience, knowledge, and technical expertise on warnings, design, and pre-release testing of products, including drugs and electro-mechanical devices (EMDs) that affect the heart.” (Id., p. 12). Since the Court finds [name of expert] is unqualified to testify as an expert in this case in the fields of warnings, testing, and design under Rule 702, the Court will not address Defendant’s other arguments.

Under Rule 702, a witness must be qualified as an expert “by knowledge, skill, experience, training, or education.” FED. R. EVID. 702. [name of expert] proposes to offer opinions on the sufficiency of the warnings, testing, and design of the TASER Model X26. Plaintiff asserts [name of expert] “is one of the world’s leading authorities on the potential cardiac effect of electronic control device (“ECD”) current” and that [name of expert] “is one of the world’s foremost authorities on electrophysiology, a subspecialty of cardiology that focuses on the electrical impulses that regulate heart rhythm.” (Plaintiff’s Memo in Opposition, pp. 1, 3). Accordingly, Plaintiff claims [name of expert] has the requisite background and expertise to offer opinions on the warnings, testing, and design of the TASER Model X26.

As indicated above, Plaintiff first argues that Defendant’s failure to issue any warnings regarding the risk of cardiac arrest due to ventricular fibrillation as a result of chest shots indicates “this is not a case involving ‘questions of display, syntax, and emphasis’ for which an expert with technical knowledge and expertise on warnings may be required.” (Id., p. 12). Plaintiff nonetheless argues [name of expert] is qualified to testify as an expert on warnings as well as product testing and design due to his experience with writing drug package inserts and safety instructions for pacemakers and defibrillators. Plaintiff also argues [name of expert] is an expert on testing and design based on his experience with pre-release testing of drugs and EMDs affecting the heart.

The Court finds that [name of expert] may not testify as an expert witness for Plaintiff at trial on the issues of warnings, testing, or design. [name of expert] experience with the warnings, testing, and design of drugs and EMDs that affect heart rhythm is insufficient to establish expertise with the warnings, testing, and design of law enforcement instruments such as the TASER Model X26. The Court also rejects Plaintiff’s argument that [name of expert] need not be an expert on warnings to opine on Defendant’s alleged failure to provide any warning regarding the risk of cardiac arrest due to ventricular fibrillation as a result of chest shots, as testimony concerning the alleged inadequacy of failing to provide such a warning necessarily requires expertise in that area.

The Court will not permit [name of expert] to testify as an expert witness on issues of warnings, testing, or design. Therefore, the Court grants Defendant’s Motion to Exclude Warning and Design Defect Opinions of Plaintiff’s Proposed Expert [name of expert].