Role of "Human Factors" Experts in Trial of Products Liability Cases

By Gerard Panaro, Howe & Hutton, WSTDA Legal Counsel

As those of you who have attended past WSTDA conferences are aware, the issue of having a “human factors” expert examine our warning labels has come up. The presumption is that designing a label on the basis of such expert advice would enhance a company’s defense if it were sued on a “duty to warn” theory.

However, a 2004 case from California illustrates that nothing is simple in litigation. First, plaintiffs may retain human factors experts of their own to argue that a product was defectively designed; second, human factors experts don’t confine their advice to warning labels; and third, the testimony of the human factors expert may not even be admissible at trial, if the other side objects and the judge rules in its favor.

D'Amore v. Ritz-Carlton Hotel Co., 2004 WL 1874657 (Cal.App. 4 Dist., 2004), involved a suit over an armoire (a large wardrobe cabinet) in a hotel room at the Ritz Carlton in San Francisco. The plaintiff, a guest at the hotel, sued the hotel and Drexel Heritage Furnishings (Drexel) after sustaining an eye injury when he attempted to open a drawer in his hotel room. A jury rejected his negligence and premises liability claims against Ritz-Carlton and his products liability action against Drexel. On appeal, the plaintiff challenged the substantial evidence to support the jury's special verdict. The California Court of Appeals affirmed the jury’s verdict in favor of Ritz and Drexel.

The plaintiff attempted to open what he thought was the bottom drawer on the right side of the armoire. It was a false drawer and when he pulled the handle, it opened and a knob on the outside of the cabinet struck the plaintiff in the right eye. It turned out to be a detached retina. An eye surgeon performed emergency surgery to reattach the retina. Though the operation was successful in saving the plaintiff’s sight, he continued to suffer distortion in his vision after the surgery. Before this incident, he had worked as a nuclear engineer for nearly 20 years. Because of physical and emotional problems, he was unable to return to work. The armoire had been manufactured ten years previously.

The plaintiff sued Ritz and Drexel for negligence, premises liability and products liability. The plaintiff wanted to have a human factors expert testify on his behalf, but Ritz and Drexel objected. The judge held a hearing to consider whether the plaintiff’s human factors expert would be allowed to testify. The court concluded the testimony would not assist the jury because the issue of whether the armoire’s design was confusing and dangerous was within the jurors’ common experience. The court also found the testimony was cumulative.

The jury found Ritz-Carlton was not negligent and Drexel did not defectively design the armoire.

On appeal, the plaintiff argued that his human factors expert witness should have been allowed to testify. He claimed the expert’s testimony would have informed the jury about certain human factor issues that would be related to the design of the piece of furniture involved as well as the behavior and expectancy of the plaintiff. The trial court, however, found the human factors subject matter not “sufficiently beyond common experience that the opinion of an expert will assist the trier of fact.” In other words, the court decided that a wardrobe cabinet in a hotel room was a common enough item that everyone could see and decide for him or herself whether a particular armoire was defectively designed.

As a further reason for not allowing the plaintiff’s human factors expert to testify, the court concluded: “I don't think it’s going to be of help, just take up a lot of time, and I think it’s confusing.” The court of appeals upheld this decision. An expert witness’s testimony can be excluded at trial, the court said, if it is not related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. A court can also exclude expert testimony if it is cumulative, will waste time, create undue prejudice, confuse the issues, or mislead the jury.

The appeals court said that the trial court could reasonably have concluded that the human factor expert’s proposed testimony did not relate to a subject sufficiently beyond common experience. Even the plaintiff said his expert’s expertise was “look[ing] at the design of the armoire from the perspective of the end user of the product; that is, what are the user’s expectations and limitations in using the product.” But this is the province of the jury to determine the expectations and limitations of the “reasonable Everyman” product user, the court said, and the court could reasonably decide the use of an armoire is not beyond the common experience of the average person.

It turns out that the plaintiff’s human factors expert’s experience was in the aerospace industry where he analyzed interior spacecraft design, cockpit design for high performance aircraft, and weapons systems and commissary equipment for two naval ships. “But there was no evidence that zero gravity, G-force acceleration, roiling seas or other factors beyond the jury’s common experience played a role in” in the plaintiff’s injury, the court noted. And, as the trial court “aptly quipped”: “We’re not trying to bring astronauts back from space here.”

For all these reasons, the court of appeals concluded, the trial court did not commit any error in excluding the human factors expert’s testimony as cumulative, and potentially confusing or obfuscatory.

On the plaintiff’s duty to warn claim, the court of appeals said that there was no duty to warn because there was no defect in the design of the armoire. To prevail on a claim for failure to warn, the court said, the plaintiff must establish that the product was defective. A product may be defective “if a reasonably foreseeable use involves a substantial danger not readily recognizable by the ordinary consumer, and the manufacturer fails to provide an adequate warning.”

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