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When Experts Contradict Their Own Party’s Testimony

September 15, 2014 in  News

New York Law Journal 

This article focuses on a seemingly “exquisite” question in the law and lore of expert admissibility battles, namely, what happens when a party’s factual testimony under oath contradicts his own expert’s theory as to how the accident happened and how the alleged defect in the product could have caused the injury? Does the expert simply have a green light to opine irrespective of his party’s version of what happened? Or is he somehow bound by the sworn factual testimony? Is the expert’s opinion impaired by the conflict since the expert testimony must “fit the facts”? This situation occurred in Lee v. Smith & Wesson,1 a divided opinion by the U.S. Court of Appeals for the Sixth Circuit issued on July 29. I refer to the issue as “exquisite” because decent arguments can be made on both sides, depending on the facts.

But first, a short update post-script to last month’s article. In my Aug. 11 column, “Expert’s Causation Opinion Excluded by ‘Zoloft’ MDL Judge,”2 the hazards of an expert “cherry-picking” among technical articles for seemingly supportive statements, while ignoring other abundant literature to the contrary, were discussed. In In Re Zoloft,3 the federal judge on June 27 excluded expert opinions that the antidepressant Zoloft caused birth defects to children born to mothers who took the drug during pregnancy.

The expert’s methodology was deemed unreliable under Daubert’s criteria4  and the opinions were held inadmissible under Federal Evidence Rule 702. Interested readers should note the Zoloft multidistrict litigation (MDL) judge’s new ruling on Aug. 12, which excluded three additional expert causation opinions following a Daubert hearing.5 The new opinion is likewise detailed and informative.

Now, back to our discussion of the Lee decision dealing with the expert who contradicts important aspects of his own party’s testimony on how the purported defect caused the injury. The intriguing question split four judges. Two of those happened to be the majority of the Sixth Circuit panel so the plaintiff won. But the dissenting appellate judge and the district judge who excluded the opinion below favored the defendant. This schism reflects tensions that counsel should not ignore. There’s plenty of room for advocacy.

Here is how the Lee controversy unfolded. Plaintiff, Mark Lee, was injured while target shooting a revolver made by defendant Smith & Wesson. He successfully fired twice. On the third shot, however, the gun discharged improperly, injuring his right eye, face and nose. According to Lee, the gun cylinder swung open and caused the blast from the shot to knock his safety glasses off and damage his right eye, leading to pain and loss of vision.

Lee (and his wife) sued in an Ohio state court. Defendant removed the suit to federal court. Lee alleged that the revolver was defective in manufacture and design, in lacking warnings, and in not conforming to defendant’s representations. The manufacturer claimed that Lee’s injuries were caused by recoil.

In support of his claims, Lee sought to introduce the expert testimony of a mechanical engineer, Roy Ruel. After examining Lee’s revolver and other materials, the expert concluded that Lee’s accident resulted from the firing of the revolver “without its cylinder fully closed and locked.” This condition caused “hot high pressure gas” to be expelled from the revolver when fired, striking Lee in the face and causing his injuries. The expert opined that the firearm was defective in both design and manufacture because it could be “cocked and fired with a pull of the trigger without its cylinder closed and locked.” Ruel also determined that the ejector rod could become loose, which would prevent the cylinder from closing and locking due to mechanical interference. Further, the expert asserted that the manufacturer failed to provide adequate warnings regarding these conditions.

Contradictory Testimony

Defendant moved to exclude Ruel’s testimony arguing that it failed to satisfy Evidence Rule 702’s “relevancy” requirement because of “inconsistencies” between Ruel’s reconstruction of the incident and Lee’s testimony. The district judge granted defendant’s motion in limine agreeing that the expert’s testimony flunked Daubert’s relevancy requirement. What were the inconsistencies?

In his deposition: (1) Lee testified that he had no difficulty firing the gun the third time, whereas the expert said the gun did not immediately fire because the cylinder failed to close fully; (2) Lee testified that the cylinder was closed when he fired, whereas Ruel stated it was open but appeared to be closed; (3) Lee’s demonstration of his grip on the gun showed that he did not touch the thumb latch, whereas the expert said that Lee pushed on the thumb latch.

Lee testified that he was able to close the cylinder “when he rechambered the third round,” that it opened and closed normally, that he noticed nothing different when loading the third round, and that the gun fired just as it had every other time, but that when he shot he had the sensation that “somebody hit me with a sledgehammer in the face.” When he fired, Lee testified, “it didn’t sound right, something was different,” and he saw a “bright flash.”

Following the district court’s grant of the motion in limine, plaintiff agreed to a stipulated dismissal, preserving his right to appeal. The court granted the motion and dismissed the case.6 On appeal, by a 2-1 vote, the Sixth Circuit panel concluded that “Ruel’s expert testimony should have been admitted.” Why? Because, said the court, he “had the appropriate qualifications, he used reliable methods, and his opinion was based on the physical evidence from the accident.” The physical evidence was the gun. The reliable scientific methods were “engineering skills” used in rendering his opinion. In preparing his report, the expert examined the revolver, numerous reports and witness accounts of the accident, Lee’s medical records and photos of the revolver. After examining the gun, he concluded that “Lee’s accident was the result of his revolver firing without its cylinder fully closed and locked.”7

The panel majority reasoned that, although the district court correctly observed that the expert’s theory contradicted Lee’s testimony in a number of particulars, the rule in Ohio, “as well as in federal practice,” is that a party is “not precluded from proving his case by any relevant evidence, even though that evidence may contradict the testimony of a witness previously called by him.”Here the expert planned to opine as set out above. Thus, said the court, “[i]f Lee was mistaken about whether he fully closed the cylinder, this testimony [by the expert] would be highly relevant to determining whether the gun was defective.”

In light of this possibility, “a jury presented with no believable alternative explanation could believe that Lee’s testimony was wrong.” Although Lee testified that he closed the chamber and fired the gun without incident, a “reasonable factfinder could conclude that Lee thought he had closed the chamber but in fact, did not.” Instead, “he overlooked the opening,” which the expert suggests happened here.9 A friend, to whom Lee handed the gun after the misfire, testified that the cylinder was open at the time Lee handed it to him. Another witness confirmed that the chamber was open when Lee put the gun down. This evidence said the court, “supports Ruel’s theory and contradicts Lee’s testimony. In short, it is not a forgone conclusion that the jury would agree with Lee that he fully closed the chamber and was able to cock the gun without difficulty before firing it.”10

The court found support for its conclusion in Greenwell v. Boatwright,11 a motor vehicle collision case where plaintiff’s theory relied on “fish-tailing” by defendant’s truck before impact, a theory rejected by defense experts. Eyewitnesses, however, gave evidence of fish-tailing. Applying a Daubert analysis, the Sixth Circuit allowed the defense expert’s opinion because it was based on physical evidence and because “expert testimony is not inadmissible simply because it contradicts eyewitness testimony.” Further, the plaintiff, in that case, did not challenge the “physical evidence,” which was the basis of the expert’s testimony. Similarly, in Lee, the gun manufacturer did not challenge the physical evidence.12

Judges Disagree

The panel majority conceded that testimony should be excluded “if it relies on facts that no jury could reject, or relies on the rejection of facts that any jury would be required to accept.” Thus, the holding in Greenwell was qualified by the explanation that “[e]xpert testimony…is inadmissible when the facts upon which the expert bases his testimony contradict the evidence.” The witness testimony in Greenwell, however, did not contradict the physical evidence upon which the expert based his reconstruction.

The court distinguished Lee’s case “from cases in which we have properly rejected expert testimony as inconsistent with the plain facts.” The panel majority also concluded that Lee’s deposition testimony did not constitute a “judicial admission.” Lee only testified as a witness “to what he remembered.” A tort plaintiff, said the court, “should be able to testify honestly to his memory of what happened and still have his lawyer argue that on the evidence as a whole it is more probable than not that the memory was faulty.” If no jury could reasonably conclude that the plaintiff’s memory was faulty, dismissal would be warranted. But that is not the case on this record, said the panel majority.13

Is that it? An expert can openly admit that he disregarded the plaintiff’s account of the events in reaching his hypothesis and, thereby, require the trial judge to open the gate to all speculation by the expert? Not so fast! There is a dissenting opinion in Lee and it has some respectable countervailing points.14

The dissent observed that the district judge properly exercised his “gatekeeping” discretion when he excluded Ruel’s testimony on the basis that it did not “fit” the facts of the case and, therefore, did not satisfy the relevancy requirement of Rule 702. To set aside the trial court’s ruling there must have been an “abuse of discretion,” i.e., the reviewing court must be “firmly convinced” that a mistake has been made. The district court’s discretion as a gatekeeper is said to be “broad.”

The relevancy prong of Rule 702 requires that an expert’s theory adequately “fit” the facts of the case. Expert testimony that does not fit the facts “does not relate to an issue in the case and, therefore, is not relevant.” The standard for “fit” is “higher than bare relevance.”15 A judge is well within her discretion to exclude potential testimony which she believes does not fit the facts and is contradicted by the available testimony.16 Here, Ruel’s theory posits that Lee was mistaken about whether he fully closed the gun’s cylinder. “Although certainly a possibility, the trial judge is not required to navigate the outermost bounds of speculation, especially when the facts of the case do not support the hypothesized condition.”

Ruel’s imputation that Lee “deliberately” manipulated the firearm, and did so in a highly unusual manner, is wholly unsupported by the record. This is a “key incongruity” that “convinces” the dissenting judge that the trial judge did not abuse his discretion in excluding the expert testimony. Opinion evidence that is connected to the existing data only by the expert’s “ipse dixit” is not required to be admitted. The court may conclude that “there is simply too great an analytical gap between the data and the opinion proffered.”17

At the outset, I referred to this controversy as perhaps an “exquisite” issue among expert admissibility battles. The competing rationales for one approach or the other seem respectable. Further, the question can impact both plaintiffs and defendants. Here, the panel majority suggests that the party’s own expert can repudiate the factual testimony given by the party so long as other evidence exists to support the expert’s opinion. However, does that premise say too much? The majority explains that the plaintiff “could have been mistaken.” Maybe he only “thought” he had closed the chamber and a jury might so find.

But isn’t that surmise of “possibilities” in itself speculation (by the appellate court)? And that conjecture is then used to allow the expert to opine in contradiction to the firm testimony of the plaintiff who was actually there, the person who pulled the trigger. This is not the case of a plaintiff who does not remember or whose testimony is tenuous or equivocal. The plaintiff was resolute in his description of what happened. He even demonstrated on a photograph how he held the gun. These facts contradicted and simply did not support the expert’s theory. Rule 702 and Daubert’s factual “fit” admissibility criteria are supposed to screen out expert speculation, not fuel it. Bottom line: There is much here for counsel to ponder on a question that recurs.


  1.  2014 U.S. App. Lexis 14393 (6th Cir. July 29, 2014).
  2.  New York Law Journal, Aug. 11, 2014, p. 3 (also available on Lexis).
  3.  In Re Zoloft, 2014 U.S. Dist. Lexis 87592 (E.D. Pa. June 27, 2014).
  4.  See Daubert v. Merrell Dow Pharms., 509 U.S. 579, 593—94 (1993).
  5.  In Re Zoloft, 2014 U.S. Dist. Lexis 111063 (E.D. Pa. Aug. 12, 2014).
  6.  Lee, 2014 U.S. App. Lexis 14393, at *6.
  7.  Id., Lexis at *6—*7.
  8.  Id., Lexis at *7—*8 (citing and quoting Dickerson v. Shepard Warner Elevator, 287 F. 2d 255, 260 (6th Cir. 1961)).
  9.  Id., Lexis at *8—*9. (Emphasis by court).
  10.  Id., Lexis at *9.
  11. 184 F. 3d 492, 497—98 (6th Cir. 1999).
  12.  Lee, Lexis at *10.
  13.  Id., Lexis at *13—*14.
  14.  Id., Lexis at *14—*20 (dissenting opinion by Judge Damon J. Keith).
  15.  Id., Lexis at *16 and n. 1 (dissenting opinion) (citing Daubert, 509 U.S. at 591).
  16.  Id., Lexis at *17—*18 (citing numerous cases).
  17.  Id., Lexis at *19—*20 (dissenting opinion) (quoting General Electric v. Joiner, 522 U.S. 136, 146 (1997)).