It is axiomatic that a plaintiff must offer evidentiary support for each element of her claim in order to survive summary judgment. And a ubiquitous feature of product liability actions is the use of expert witnesses by both sides. These principles are, of course, related – the plaintiff usually must offer expert testimony in order to make a prima facie case, and the defense then attacks that prima facie case through expert testimony. But sometimes a plaintiff loses sight of the connection and, despite retaining an expert, fails to elicit the opinions she needs to make her case. As a recent decision from the Western District of Wisconsin illustrates, it pays for a defendant to carefully evaluate whether a plaintiff has checked all of the necessary boxes.
In Moore v. National Presto Industries, Inc., 2022 WL 1555875 (W.D. Wis. May 17, 2022), Plaintiff alleged that she was injured when she opened her pressure cooker while it was still pressurized, ejecting its contents onto her arm, causing burns. Plaintiff sued the cooker’s manufacturer, asserting strict liability claims for design defect and failure to warn as well as a claim for negligence. Defendant moved for summary judgment on each of these claims.
Design Defect: Applicable Wisconsin law required Plaintiff to demonstrate that “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe.” Plaintiff offered an engineering expert who, despite not inspecting the product, presented several hypotheses for what might have caused the accident. But he did not opine that any of his hypotheses actually occurred in Plaintiff’s case, nor did he opine that the design was defective. Indeed, several of his hypotheses suggested user error rather than any design defect. Critically, he also failed to identify any safer alternative design for the cooker. Plaintiff argued that the expert’s opinions were nevertheless admissible because he had cited certain of Defendant’s internal documents regarding testing of the product and subsequent product improvements, but the court rejected that argument while noting that none of the documents were tied to a defect in Plaintiff’s cooker. The court found that the expert’s opinions failed to meet the requirements of FRE 702 – they were not based on sufficient facts or data, and he failed to employ reliable methods to analyze the design, leading to opinions that were no more than speculation. He also failed to establish the essential element of a reasonable alternative design that would have reduced the risk of injury. The court therefore granted summary judgment as to the strict liability design defect claim.
Failure to Warn: Plaintiff failed to articulate any inadequacy in the warnings accompanying the product. Plaintiff merely pointed to her engineering expert’s report and claimed that it “created questions of fact” about the adequacy of the warnings. But, as the court noted, the expert failed to offer any opinion about the adequacy of Defendant’s warnings or provide any examples of reasonable alternative warnings. Moreover, even assuming the warnings were inadequate, Plaintiff had failed to provide any evidence that an additional warning would have prevented her injury.
Negligence: Plaintiff’s expert opined that a reasonable manufacturer would have employed a systematic “Failure Modes and Effect Analysis” and contended that Defendant failed to do so. However, the expert failed to provide any evidence in support of that contention. The court held that the expert’s “rank speculation” was insufficient to show that Defendant breached its duty of care. The court therefore granted summary judgment on Plaintiff’s negligence claim as well.
Expert testimony is typically necessary to prove a product liability case. As the court observed, summary judgment is the “put up or shut up” moment for the plaintiff. But as Moore reminds, “putting up” means not just retaining an expert but assuring that the expert can and does satisfy each element of the plaintiff’s burden of proof. By failing to do so, Plaintiff presented only a half-baked case – a tasty recipe for a defense summary judgment.
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