No. 25959 & 25960 -
Sherman Jones and Lori Jones v. Patterson Contracting, Inc., a West Virginia corporation; and
Grasan Equipment Company, an Ohio corporation
Davis, J., concurring in part, dissenting in part:
This case presented two dispositive issues for resolution by the Court. The first issue concerned the propriety of the trial court granting judgment to defendant Patterson Contracting, Inc. On this issue, the majority decided that the trial court correctly granted judgment as a matter of law to Patterson Contracting, Inc. I concur in the majority's decision on this issue, as I believe a fair reading of the evidence, in the light most favorable to the plaintiffs, clearly demonstrates that the plaintiffs failed to present justiciable evidence on each of the elements of a statutory deliberate intent cause of action.
The second dispositive issue presented to this Court concerned the trial court's
decision to strike expert testimony presented by the plaintiffs through Keith A. Colombo
(hereinafter referred to as Colombo), an expert in aeronautical engineering. The majority
concluded that any question concerning Colombo's credibility was for jury determination.
Therefore, it was reversible error to strike Colombo's testimony. I disagree with the
majority's resolution of this issue. Were this issue truly one of credibility, the majority
would be unassailably correct in finding that the trial court invaded the province of the jury.
However, the issue regarding Colombo did not present a question of credibility; but, it
presented a question of reliability.
Reduced to its most basic form, the issue concerning Colombo was whether
or not a rocket scientist can give expert testimony on a mining industry issue for which he
had absolutely no experience, training, skill, education or knowledge. The majority has
concluded that an expert without any experience, training, skill, education or knowledge in
an area for which he or she testifies, may nevertheless testify as an expert because the jury
should be allowed to reject the testimony--should the jury understand the expert is
unqualified. In my judgment, the position taken by the majority in this case has completely
disregarded the body of law this Court has developed on the admission of expert testimony.
The unshakeable conclusion to be reached from the majority decision in this
case is that, for example, a pediatrician having no experience, training, skill, education or
knowledge in oral surgery, may nevertheless testify as an expert on oral surgery procedures
and standards, because his or her lack of experience, training, skill, education and knowledge
in oral surgery presents a credibility issue for the jury to determine. This is an unacceptable
standard for the admission of expert testimony. I must, therefore, dissent from the majority's
decision that the trial court abused his discretion in striking Colombo's testimony. I do so
for two reasons. First, Colombo did not qualify as an expert in the area for which he was
rendering an opinion. Second, assuming arguendo, that a rocket scientist is permitted to
testify on a mining industry safety issue, Colombo's testimony was unreliable.
Rule 702 of the West Virginia Rules of Evidence enumerates the broad criteria
by which a person may qualify as an expert. Rule 702 states that a person may qualify as an
expert based upon knowledge, skill, experience, training, or education[.]See footnote 1
established a workable test for determining whether a person is an expert in the seminal case
of Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995). Syllabus point 5 of Gentry
In determining who is an expert, a circuit court should conduct a two-step inquiry. First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify.
Although the majority opinion quoted syllabus point 5 of Gentry, it failed to completely perform any analysis under this fundamental test to determine whether Colombo was qualified as an expert on the issue for which he was asked to render an opinion. In other words, the majority opinion assumed, contrary to the overwhelming evidence, that Colombo qualified as an expert on the issue for which he was asked to render an opinion. With this assumption, the majority then analyzes the issue in terms of a qualified expert. This forced and unreasonable assumption lead the majority to reason that this case turns on the issue of credibility and not admissibility. Both the assumption and conclusion are wrong.
Under the first part of the Gentry test it must be shown that a proffered expert
meets the minimal educational or experiential qualifications in a field that is relevant to the
subject under investigation. Colombo did not satisfy the initial test.See footnote 2
The record in this case
is unquestionably clear that Colombo was an expert by education, training and experience
in the general area of aeronautical safety engineering. If this case involved aeronautical
safety issues, Colombo would probably qualify as an expert. However, this case involved
engineering safety devices for a mining industry rock crushing machine. The record is void
of any evidence that Colombo had experience, training, skill, education or knowledge
regarding engineering safety devices for such a piece of mining equipment.
The majority opines that because Colombo had expertise as a safety engineer
in aeronautical devices, he is therefore qualified to testify as an expert on engineering safety
devices for mining equipment. The majority's reasoning allows anyone with expertise in a
specific area to testify, without experience, training, skill, education or knowledge, as an
expert outside of his or her specific area.See footnote 3
In other words, the majority, by this decision, has
announced that in West Virginia an engineer in bridge safety may testify as an expert about
any engineering safety issue, even though he or she has no experience, training, skill,
education or knowledge about engineering safety issues outside of bridge safety. I simply
cannot accept this result.
The plaintiffs in Kumho were involved in an automobile accident that occurred after a tire on their minivan blew out. The plaintiffs filed an action in a federal district court against the tire manufacturer, alleging manufacturing or design defect in the tire. The plaintiffs sought to use the testimony of an engineering expert in tire failure analysis to render an opinion that the tire blew out because of manufacture or design defect. The defendant filed a motion in limine to preclude testimony by the plaintiffs' expert. The federal district court granted the motion after concluding that the expert's testimony was inadmissible because the methodology used by the expert was unreliable.
On appeal to the Eleventh Circuit the district court's ruling was reversed. The Court of Appeals found that the district court improperly applied the test for expert scientific testimony established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).See footnote 4 4 Under the reasoning of the Court of Appeals, the Daubert test was only applicable to scientific expert testimony.See footnote 5 5 The Supreme Court rejected the Court of Appeals' limitation of Daubert to scientific experts.See footnote 6 6 The Supreme Court reasoned as follows:
[I]t would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between scientific knowledge and technical or other specialized knowledge.
There is no clear line that divides the one from the others.
Disciplines such as engineering rest upon scientific knowledge.
Kumho, 526 U.S. at ___, 119 S.Ct. at 1174.
The Supreme Court further concluded:
[T]he trial judge must have considerable leeway in
deciding in a particular case how to go about determining
whether particular expert testimony is reliable. That is to say,
a trial court should consider the specific factors identified in
Daubert where they are reasonable measures of the reliability of
Kumho, 526 U.S. at ___, 119 S.Ct. at 1174.
The next issue addressed by the Supreme Court in Kumho was whether the
district court abused its discretion in excluding the testimony of plaintiffs' tire engineering
expert. The opinion observed:
The District Court did not doubt [the expert's] qualifications, which included a masters degree in mechanical engineering, 10 years' work at Michelin America, Inc., and testimony as a tire failure consultant in other tort cases. Rather, it excluded the testimony because, despite those qualifications, it initially doubted, and then found unreliable, the methodology employed by the expert in analyzing the data obtained in the visual inspection, and the scientific basis, if any, for such an analysis.
Kumho, 526 U.S. at ___, 119 S.Ct. at 1176-1177.
After a careful review of facts in the case, the Supreme Court concluded that the district court was correct in excluding testimony of plaintiffs' expert. Rule 702 grants the district judge the discretionary authority, reviewable for its abuse, to determine reliability in light of the particular facts and circumstances of the particular case. Kumho, 526 U.S. at ___, 119 S.Ct. at 1170.
In syllabus point 3 of Gentry, Justice Cleckley plainly, clearly and
unequivocally held that [t]he first and universal requirement for the admissibility of [expert]
evidence is that the evidence must be both 'reliable' and 'relevant.' The Fourth Circuit
Court of Appeals addressed the issue of the reliability of an expert's testimony in Redman
v. John D. Brush & Co., 111 F.3d 1174 (4th Cir. 1997). In Redman the owner of a
burglarized safe filed a products liability action against the safe manufacturer, alleging that
the safe was negligently designed. The trial court allowed the plaintiff to present expert
testimony showing a manufacturing defect in the design of the safe. The jury returned a
verdict for the plaintiff. On appeal the Fourth Circuit reversed.
The Fourth Circuit reversed the judgment in Redman, in part, because it found
the district court committed error in admitting testimony by the plaintiff's metallurgic expert.
The problem with the admissibility of [the testimony] is
that Redman's expert was not qualified to testify about industry
standards. He had never before analyzed a safe, engaged in the
manufacture or design of safes, or received any training
regarding safes. Even more importantly, he was not personally
familiar with the standards and rating systems for fire protection
capacity and burglary protection capacity used in the safe
industry. He acknowledged that his only knowledge of safes
was acquired in preparation for this trial through discussions he
had initiated with people who sold, distributed, or repaired safes.
. . . In this case, an expert in the relevant field would be familiar with the design and manufacture of safes and the industry standards regarding safes. There is no proof and no reason to believe that such an expert would rely on conversations with store personnel to identify a standard of burglar protection capacity.
. . . In the absence of an industry standard for burglar deterrence, it would be speculative and misleading for the expert to opine that the safe did not meet that undefined standard.... Under these circumstances, it was error to permit Redman's expert to testify that the safe was not burglar deterrent.
Redman, 111 F.3d at 1179-1180.
The decision in Redman is important for several reasons. First, Redman recognized that merely because a person is an expert in metallurgy, does not immediately qualify that person to render an opinion on whether a metal safe was negligently designed. Second, Redman acknowledged that a person with general metallurgical knowledge could render such an opinion on whether a metal safe was negligently designed, if such person obtained adequate knowledge to formulate an opinion. Third, and most importantly, Redman held that for a person with only general metallurgical knowledge to testify as an expert on negligent design of a safe, the source of the person's knowledge must be reliable.
In the instant proceeding, Colombo's expertise was in aeronautical engineering
safety. Colombo was asked to render an expert opinion on engineering safety requirements
for a piece of mining equipment. For Colombo to qualify as an expert on engineering safety
requirements for a mining industry rock crushing machine, he had to demonstrate knowledge
in the area that would be consistent with an actual expert in the field of mining equipment
safety. After the trial court listened to Colombo's testimony, the trial court concluded that
Colombo did not have the knowledge of mining equipment safety that an expert would have
in the field of mine safety. See Black v. Food Lion, Inc., 171 F.3d 308, 311 (5th Cir. 1999)
(The overarching goal of [the trial court's] gate-keeping requirement ... is to ensure the
reliability and relevancy of expert testimony. It is to make certain that an expert, whether
basing testimony upon professional studies or personal experience, employs in the courtroom
the same level of intellectual rigor that characterizes the practice of an expert in the relevant
Notwithstanding these facts, the majority opinion states that: Mr. Colombo
exhibited extensive knowledge of safety mechanisms and safety issues in general; his lack
of distinctive knowledge of the workings of the mining industry should not render his
testimony inadmissible. The majority conceded that Colombo knew nothing about the issue
upon which he was called to render an opinion. Yet, the majority concluded that because he
was competent in other safety matters his testimony was admissible. Based upon Rule 702
and this Court's Gentry analysis, the logical and correct conclusion to reach was that
Colombo's testimony was unreliable and therefore inadmissible.
The majority further supports its decision by relying upon the fact that
Colombo was familiar with mining industry ANSI standards. What the majority failed to
mention was that the ANSI standards relied upon by Colombo were not the applicable
versions for the equipment at issue. In other words, Colombo used the wrong ANSI standards
to reach his opinion. Unfortunately, the majority disregarded this critical fact and determined
the matter a question of credibility for the jury.
Colombo's use of outdated ANSI standards goes to the issue of reliability and
ultimately admissibility. Consistent with the United States Supreme Court's ruling in
Daubert, we have made it a cornerstone requirement that an assessment should ... be made
in regard to the expert testimony's reliability by considering its underlying scientific
methodology and reasoning. Wilt v. Buracker, 191 W.Va. 39, 46, 443 S.E.2d 196, 203
(1993).See footnote 7
In syllabus point 4 of Mayhorn v. Logan Medical Foundation, 193 W.Va. 42, 454
S.E.2d 87 (1994) we unequivocally held that an expert's opinion is admissible if the basic
methodology employed by the expert in arriving at his opinion is scientifically or technically
valid and properly applied. Justice Cleckley cautioned this Court that [e]vidence which
is no more than speculation is not admissible under Rule 702. State v. LaRock, 196 W.Va.
294, 307, 470 S.E.2d 613, 626 (1996). [T]he majority confuses the [credibility] of an expert
witness--a matter for the jury--with the reliability of his or her methodology--a matter
initially for the trial judge. In re Unisys Savings Plan Litigation, 173 F.3d 145, 161 (3d Cir.
1999) (Becker, J. dissenting). See Newman v. Hy-Way Heat Systems, Inc., 789 F.2d 269, 270
(4th Cir.1986) ([N]othing in the Rules appears to have been intended to permit experts to
speculate in fashions unsupported by ... evidence.). In my judgment, the majority opinion
has dismantled the reliability criterion set out in Wilt v. Buracker, 191 W.Va. 39, 46, 443
S.E.2d 196, 203 (1993) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and replaced it with credibility. See United State
v. Charley, 189 F.3d 1251, 1266 (10th Cir. 1999) (Rule  imposes a special gatekeeping
obligation on the trial judge to ensure that an opinion offered by an expert is reliable);
United States v. Harris, 192 F.3d 580, 588 (6th Cir. 1999) ([T]his Circuit has broadly
applied Daubert's ... reliability analysis to all evidence offered under Rule 702.); Allison v.
McGhan Medical Corp., 184 F.3d 1300, 1310 (11th Cir. 1999) (While meticulous Daubert
inquiries may bring judges under criticism for donning white coats and making
determinations that are outside their field of expertise, the Supreme Court has obviously
deemed this less objectionable than dumping a barrage of questionable scientific evidence
on a jury, who would likely be even less equipped than the judge to make reliability and
relevance determinations and more likely than the judge to be awestruck by the expert's
In addressing the issue of expert testimony in Gentry, 195 W.Va. at 524, 466 S.E.2d at 183, this Court noted that Rule 702 has three major requirements: (1) the witness must be an expert; (2) the expert must testify to scientific, technical or specialized knowledge; and (3) the expert testimony must assist the trier of fact. I find it difficult to believe that Colombo's inaccurate and unreliable testimony could assist the trier of fact.See footnote 8 8
In summary, the concept of reliability is an issue for trial court determination. The concept of credibility is a jury question. In this case, the majority has confused the two issues. As such, and for the reasons set forth, I concur in part and respectfully dissent in part from the majority's decision in this case. I am authorized to state that Justice Maynard joins me in this dissent.