Commercial Litigation and Arbitration

Expert Testimony Nightmares Are Made Of

The plaintiff in Johnson v. SJP Mgmt. LLC, 2009 U.S. Dist. LEXIS 11272 (E.D. Pa. Feb. 12, 2009), sued for injury due to a defective elevator that allegedly closed on her arm. The defendant moved to strike the testimony of her expert, Schloss, on Daubert grounds. As recounted by the Court, “Schloss could not explain the undisputed fact that no repairs or remedial measures were necessary to restore the elevator to normal operation [after the accident]. Schloss explained that he ‘would have to be an expert to do that’:”

Q: Can we agree that if there were a problem with the Lambda 3-D door detector, it would not fix itself?

A: No.

Q: We can't agree with that?

A: We cannot agree on that.

Q: It could just miraculously be better the next day?

A: Miraculously be better the next day. You don't understand all the things that are involved in that. I would have to be an expert to do that.

Q: Well, why don't you tell me what specifically was wrong with the Lambda 3-D detector on the day of this accident, December 14, 2005?

A: I don't know.

(Schloss Dep. 247.)

Nonetheless, the Court was “satisfied that Schloss is qualified to testify as an expert under Rule 702. *** The Third Circuit has repeatedly noted the liberal standard used for qualifying experts. *** It is well settled that an expert cannot be excluded because the court does not deem the proposed expert to be the most qualified or because the proposed expert does not have the specialization the court considers to be the most appropriate. *** Indeed, ‘if the expert meets the liberal minimum qualifications then the level of the expert's expertise goes to credibility and weight, not admissibility.’ *** Schloss meets these ‘liberal minimum qualifications.’ *** Schloss has technical training and experience in general elevator maintenance and repairs. *** Schloss's expertise in the field of elevators is sufficient to permit him to offer an expert opinion, notwithstanding his lack of experience with the specific technology at issue here.”

However, his opinion was excluded because it was based on pure speculation:

In short, Schloss's scenarios are hypothetical possibilities without any basis in fact. Indeed, Schloss admitted that he does not know what caused the alleged incident involving Plaintiff:

Q: [Y]ou can't say exactly what happened on December 14, 2005 to cause [Plaintiff's] accident, can you?

A: Bingo.

Q: Agreed?

A: Yes.


An expert's opinion cannot be based on unsupported speculation.


Essentially [the expert's] opinion . . . is based on nothing more than his training and years of experience as an engineer. Although there may be some circumstances where one's training and experience will provide an adequate foundation to admit an opinion and furnish the necessary reliability to allow a jury to consider it, this is not such a case. . . . [The expert's] ipse dixit does not withstand Daubert scrutiny.

Oddi, 234 F.3d at 158; see also Pappas v. Sony Elecs., Inc., 136 F. Supp. 2d 413, 426 (W.D. Pa. 2000) ("If Daubert and its progeny require anything, it is that plaintiffs come forward with proof of a valid methodology based on more than just the ipse dixit of the expert.")***

"An 'expert's opinion must be based on the methods and procedures of science rather than on subjective belief or unsupported speculation.'" Oddi, 234 F.3d at 158 (quoting Paoli, 35 F.3d at 742); see also Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996) ("[T]he courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it. There may be evidence to back up [the expert's] claim, but none was presented to the district court."). ***

*** Although Schloss meets the minimum qualifications for proffering expert testimony, his qualifications do not enhance the reliability of the methods he used here.

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