As we reported last week, a trend has emerged in the Sixth Circuit with expert witnesses facing difficult challenges so far this year. Recently, however, one expert survived the more rigorous scrutiny.
In V&M Star Steel v. Centimark Corporation, (No. 10-3584) (V&M Star Steel.pdf), V&M sued Centimark Corporation (“Centimark”) alleging breach of contract and negligence stemming from an incident at its steelwork facility in which roofing materials slid off a sloped roof and fell into its electrical substations, located directly below, causing V&M to lose power at its plant for over 30 hours and incur damages of around $3 million for electrical repairs and lost profits. The district court excluded the testimony of V&M’s expert and granted summary judgment in favor of Centimark, finding that V&M did not produce sufficient evidence of causation.
A significant issue in the case was the existence of “industry standards applicable to staging corrugated panel bundles on a roof.” Centimark’s expert opined that there were no such standards and claimed that individual installation companies determined the proper staging of roofing materials depending on site conditions. V&M’s expert, however, disagreed and claimed that metal roofs kickers should always be used to secure roofing materials on sloped surfaces, regardless of roof pitch. He further opined that Centimark’s employees failed to properly set up the job by not using kickers or other restraining devices to secure the roofing materials.
In reversing the district court’s decision, the Sixth Circuit determined that V&M’s expert was qualified to give testimony regarding the frequency and necessity of using kickers to secure roofing materials in the metal roofing industry and found that by excluding the opinion in its entirety, V&M was “precluded from supporting its claims and meeting Centimark’s expert testimony.” In excluding the opinion, the district court also focused on a portion of the expert’s report indicating that as soon as the bands securing roofing materials are cut, the materials will want to slide down the roof. The district court felt that this evidence was irrelevant because there was no evidence that the metal bands around the bundle of roofing materials in question had been cut (in fact, the evidence indicated that the bands remained intact). The Sixth Circuit disagreed and clarified that the expert did not state that the metal bands had been cut, but merely attempted to explain what occurs when metal bands are cut and a bundle of roofing materials is left sitting on an unsecured slope. In the Court’s opinion, this explanation “would have assisted the jury in understanding the force of gravity on the roofing panels.”
Finally, the Sixth Circuit also disagreed with the district court that V&M “ha[d] no factual basis for causation.” The Court recognized that V&M’s expert opined that kickers are necessary to secure bundles of roofing materials because shipping bands become weakened during transport and are not reliable in preventing individual panels from sliding out of bundles. Based on the facts made known to him, V&M’s expert concluded “that the metal bands no longer resisted gravity’s effect on the panels and, because they were placed perpendicular on the roof line, they slid downhill toward the gutter.” It was the absence of kickers which allowed the roofing materials to slide off the roof and into the electrical substation causing significant damage.
In the aftermath of recent challenges to expert testimony, the Sixth Circuit’s decision is significant because it recognizes that “[e]xperts are permitted a wide latitude in their opinions, including those not based on firsthand knowledge.” Unlike the district court, the Sixth Circuit concluded that V&M’s expert was not “required to develop scientific measurements to support his opinion that gravity caused the panel to slide.” In addition, the Sixth Circuit found the opinion relevant because it helped establish that “had Centimark installed kickers . . . it is more probable that the panels would not have fallen into the substation when gravity pulled them downward.” Notably, the Sixth Circuit determined that the district court’s concerns about V&M’s expert testimony bore more on the weight of the evidence at trial than on its admissibility.
Experts are obviously evaluated on a case-by-case basis, and we will continue to monitor the Sixth Circuit’s treatment of expert testimony to look for trends for how the Court considers the admissibility of expert testimony.