Opinion
Civil Action No. 95-T-1614-N.
October 16, 1996
Richard M. Powers, P.A., Tallahassee, FL, for Plaintiff, Royce E. Lowery.
Charles Redding Pitt, Farris, Riley Pitt, LLP, Birmingham, AL, Patricia A. Snyder, U.S. Attorney's Office, Montgomery, AL, United States Department of The Army, Corps of Engineers, for Defendant, John Doe, an employee or employees of the Federal Government acting within the scope of his of their employment whose identity or identities are unknown.
MEMORANDUM OPINION
Plaintiff Royce C. Lowery brings this lawsuit against defendant United States of Alabama for injuries sustained in a fire that occurred while he was making a visual inspection of an electrical switch at Gunter Air Force Base in Montgomery, Alabama. Lowery contends that the government negligently failed to install barriers that would have prevented his injury. Jurisdiction arises under the Federal Torts Claim Act, 28 U.S.C.A. §§ 1346(b), 2671-80. The matter is now before the court on the government's motion for summary judgment, which argues that Lowery's evidence of causation is insufficient because it consists solely of the factually unsupported opinion of Lowery's expert, Douglas Stahl. Based on the representations made in briefs and at recorded oral argument on October 4, 1996, and on the evidence presented, the court will grant the government's motion.
I. BACKGROUND
At the time of the accident, Lowery was employed by Auburn Electric, Inc. as a quality control representative. Auburn Electric was awarded a contract for the conversion of electrical system at Gunter Air Force Base from an overhead to an underground system. Lowery did not perform any of the electric work, but was responsible for checking the work for compliance with the contract. On the day of the accident, some six months after the electrical work, he was working to complete final drawings showing the physical location of each switch, as well as the fuse size, electrical cable size, and the building or equipment which was to be serviced by the switch. To do this, he visually inspected a number of fully charged and energized switch installations. While completing the inspection of one of the switches, a flashfire occurred, burning his chest, arms, and face. Lowery has no recollection of the accident or of any events immediately preceding it.
II. DISCUSSION
Lowery contends that the government's negligent decision not to install safety barriers on the switches resulted in his injuries. To support this, he relies on the opinion of an expert witness who states that the cause of the fire was a "fault" in the electrical flow "downstream" from the switch box. The government asserts that the expert's opinion is not based on any facts which can be produced as evidence, and, therefore, cannot stand alone to support Lowery's claim.
The Federal Rules of Evidence govern the admissibility and evaluation of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 586, 113 S.Ct. 2786, 2793 (1993). Under these rules, a trial judge must serve a screening function, prohibiting expert testimony that is not based on scientific knowledge with a reliable foundation or is not helpful to the trier of fact. Id. at 587-97, 113 S.Ct. at 2794-98.
A trial judge performs this function by applying Rule 702 of the Federal Rules of Evidence. Rule 702 of the Federal Rules of Evidence provides:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
Courts implement Rule 702 through a two-part test. Under this test, a trial judge must determine both that the evidence is relevant and that it is reliable. See, e.g., Deimer v. Cincinnati Sub-Zero Products Inc., 58 F.3d 341, 344 (7th Cir. 1995); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir. 1995); Glaser v. Thompson Medical Co., 32 F.3d 969, 972 (6th Cir. 1994).
A. Relevance
The court will address relevance first. Under Daubert, an expert opinion must "fit" the case. That is, it must assist the trier of fact in understanding a fact at issue.
Lowery's expert is testifying as to what allegedly caused the accident. Thus, relevance requires that there be "a valid scientific connection to the pertinent inquiry." Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. In reaching this determination, the trial court must look to the governing substantive law on what standard of evidence must be met. Daubert, 43 F.3d at 1320. Lowery must prove by a "preponderance of the evidence" that he was injured as a result of the government's negligence. A fact is established by a preponderance of the evidence if it is more likely true than not true.
Lowery's expert, Douglas Stahl, states in his deposition that "Based on the information I have available, I can't determine an exact cause. I don't see any evidence that Mr. Lowery contributed to it." At trial, he would therefore merely testify that Lowery did not cause this accident. Even if that is true, Lowery's lack of responsibility does not necessarily imply the government's culpability. His opinion is based, not on affirmative evidence as to what happened, but on lack of evidence. He states, "There wasn't information to suggest it happened at the box. That leaves that it happened someplace else." Vague assertions of mere possibilities — that is, that something could not possibly or may not have caused or contributed to a flashfire — do not, standing alone, support an affirmative finding that another scenario occurred. A mere possibility of causation does not establish that "x" more probably than not caused "y". See, e.g., Christopher v. Cutter Laboratories, 53 F.3d 1184, 1191 (11th Cir. 1995) (applying Florida law); Daubert, 43 F.3d at 1321-22 (applying California law under second prong of Daubert test).
Defendant's motion for summary judgment, filed on August 30, 1996, attachment 2, deposition of Douglas Stahl at 118.
Id. at 112.
Furthermore, Stahl acknowledges that the installation of the barriers would not assure that Lowery would not have sustained his injuries.
"Q: . . . you can't state as you sit here today that would have prevented his injuries; is that correct?
A: I can't — again, because we don't know enough about the body position at the time of injury, certainly I can't say that.
Q: So it would be speculation to say that it would have prevented his injuries entirely if that barrier had been in place?
A: I can't say that within reasonable engineering accuracy."
Id. at 135.
Because Stahl cannot support his opinion that the accident occurred as a result of any action or inaction on the part of the government, or that the installation of the barriers would have prevented the accident, his testimony would not be helpful to the jury, and does not meet the relevance prong of the Daubert test.
B. Reliability
In order to be "reliable" under Rule 702, expert testimony must be based on scientifically valid foundations, whether those be statistics, scientific or technical studies, or the like.Daubert, 509 U.S. at 590-95, 113 S.Ct. at 2795-97; Cutter Laboratories, 53 F.3d at 1191. Stahl's opinion must, therefore, be based on "scientific knowledge" that will assist the trier of fact to understand or determine a fact at issue in this lawsuit.Daubert, 509 U.S. at 591, 113 S.Ct. at 2796. "Scientific" means that the expert's testimony must have a "grounding in the methods and procedures of science." Id. at 590, 113 S.Ct. at 2795. It must also consist of "knowledge," which "connotes more than subjective belief or unsupported speculation." Id. The testimony need not be known to a certainty, but it must be drawn from a "body of known facts" or refer to a "body of ideas inferred from [known] facts or accepted as truths on good grounds." Id. (citation omitted). Thus, the court must look to the foundation of Stahl's opinion and determine that it is well grounded in scientific knowledge.
The Supreme Court has set forth a non-exhaustive list of factors a trial court may look to in determining whether an expert opinion is scientifically well grounded. These include: whether the theory or technique is generally accepted in the scientific community; whether it has been subjected to peer review and publication; whether it can be and has been tested; and whether the known or potential rate of error is acceptable.Id. at 593-94, 113 S.Ct. at 2796-97. Many courts applying these factors have evaluated experts' testimony based on research, studies, publications, and the like. See, e.g., Deimer, 58 F.3d at 344-45; Daubert, 43 F.3d at 1318-20;Glaser, 32 F.3d at 972; Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1124-25 (9th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 734 (1995).
Other than his general experience, training, and research, Stahl has offered no scientific foundation in the form of articles, research, tests, or similar references, to support his opinion that an electrical fault causes flashfires under similar circumstances. Admittedly, Stahl said that he "may have looked through some of the materials in the library." These materials, however, have not been presented as a foundation for his opinion; nor did Stahl identify these materials or indicate what they said in support of his opinion. In any event, Stahl has not presented any scientific support for his theory that the accident was the result of a downstream fault in the electrical line. Thus, Stahl's opinion has not met the reliability prong of the Daubert test.
Id. at 64.
The court would emphasize, however, that it has not determined, in fact, what caused the flashfire which injured Lowery, nor that had the barriers been installed they would have failed to protect him. The court does not know. The court has merely held that Lowery has failed to come forward with any reliable evidence on this issue. Though Stahl's opinion may be correct, it cannot stand without a factual foundation and Lowery has presented no other evidence of the government's negligence.
An appropriate judgment will be entered.
JUDGMENT
In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court:
(1) That the motion for summary judgment filed by defendant United States of America on August 30, 1996, is granted; and
(2) That judgment is entered in favor of defendant United States of America and against plaintiff Royce E. Lowery, with plaintiff Lowery taking nothing by his complaint.
It is further ORDERED that costs are taxed against the plaintiff Lowery, for which execution may issue.