In a series of recent decisions, the United States Court of appeals, Fifth Circuit, has firmly instructed the District Court judges that "it is time to take hold of expert testimony in federal trials." Randolph v. Laiesz, 896 F.2d 964 (1990). There appears to be two areas of expert testimony that are becoming troublesome to the Fifth Circuit.
The first concern is the use of experts to establish economic damages.
The second area is the use of safety experts. In the case of Peters v. Five Star Marine Service, 898 F.2d 448 (1990), the Fifth Circuit agreed with the District Court Judge that it was unnecessary for an expert to testify on the issue of whether diesel fuel made the deck of a vessel slippery or on the issue of whether it was reasonable for equipment on the deck of a boat to be moved in heavy weather.
In a product liability action decided under Mississippi Law, Mellon v. John Deere & Co., 887 F.2d 1241 (5th Cir. 1990), the Fifth Circuit affirmed a District Court Judges exclusion of the safety expert testimony on what constituted "consumer expectations." The Mellon Court held that the opinion of a safety expert on what a consumer expected from a product was of no assistance to the jury.
In another case, LeBouef v. K Mart Corp., 888 F.2d 330 (5th Cir. 1989), the Fifth Circuit also limited the evidence upon which a safety expert may base his opinion by stating that the temporary conditions in existence two years after an accident had occurred could not serve as a basis for an expert’s opinion on the condition of the floor at the time of the accident.
In a surprise move that frankly astounded the author, a trial judge in the State of Idaho refused to allow expert testimony on the reconstruction of a boating accident in which one boat ran over the water skier being pulled by the second boat. The judge ruled that the subject matter of the expected expert testimony would not be of assistance to the jury and that the subject matter was within the common knowledge of the jurors.
That is very interesting since most boaters do not know most basic Rules of the Road, or how to properly interpret them.
Parts of this article were quoted from the Salley & Associates Reporter published by the law firm of that name in New Orleans, LA.
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