A divided panel of the Sixth Circuit held today in Lee v. Smith & Wesson Corp. that a district court abused its discretion in excluding testimony from the plaintiff’s expert that contradicted the injured plaintiff’s own account of how he was injured by an improperly discharging a Smith & Wesson revolver.  The court held that the mechanical engineer’s explanation of the discharge (which involved the revolver’s cylinder being open) met Daubert requirements and therefore was admissible, even though it flatly contradicted the plaintiff’s version of events (where the cylinder was closed before discharge).  The engineer’s testimony was based on a physical examination of the gun, as well as a review of “numerous reports and witness accounts of the accident, Lee’s medical reports, and photos of the revolver.”

Repeatedly emphasizing the expert’s reliance on “physical evidence,” (as opposed to “abstract theory,” “estimates and assumptions,” and “questionable data” in the cases the court distinguished) the panel held that a reasonable jury could find that the expert was correct and that Plaintiff was “mistaken.”  According to the court, “A tort plaintiff 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.”

Judge Keith dissented, focusing primarily on the broad grant of discretion given the trial judge and describing the possibility that plaintiff’s account was mistaken as “the outer-most bounds of speculation.”

This is another interesting chapter in the Sixth Circuit’s recent Daubert jurisprudence.  The Court here focused on the reliability of the methodology and held that to be paramount, over even a conflict with plaintiff’s own testimony. And it again illustrates the importance of the Daubert analysis in products liability cases, where the expert can make or break a case.