Miller v. Bike Athletic Co.

Francis E. Sweeney, Sr., J. In determining whether the trial court was warranted in granting appellees’ motions for summary judgment, we must consider whether the court properly excluded the scientific testimony of appellants’ expert witnesses. I. Expert Testimony of Dr. Lafferty At the core of this determination is whether the testimony of James Lafferty was admissible and whether the test he based his opinion upon was reliable. Appellants retained James Lafferty, a consulting engineer in the areas of mechanical and biomedical engineering, to provide them with an opinion on whether the helmet was a cause of Miller’s injuries. The helmet, which was manufactured in 1981, had been reconditioned by appellee Ace Cleaners & Reconditioners of Athletic Equipment, Inc. prior to being used by appellant. The helmet is designed with an energy-absorbing liner consisting of two bladders, an upper and lower bladder. The lower bladder is to be inflated before the player puts on the helmet. The upper bladder is then inflated through a valve at the top of the helmet. When Lafferty examined the helmet, he found that the valve opening at the top of the helmet had been sealed shut and that the helmet had “zero gauge pressure” in the lower bladder. Although he did not know if there had been any leakage since the accident, Lafferty inflated the lower bladder and rechecked the pressure ten days later. At that time, he found no significant air leakage. Lafferty believed that the lining had not been properly inflated at the time Miller was injured. Lafferty took the helmet to Capitol Varsity Athletic Equipment, Inc. to test it in accordance with standards established by the National Operating Committee on Standards for Athletic Equipment (“NOCSAE”). The purpose of such testing is to determine the helmet’s shock-absorption properties under various conditions. The NOCSAE standard is a head-protection standard; however, in Lafferty’s opinion, the test can also be used to determine whether a helmet can — 610 — prevent injuries to the neck. In the NOCSAE test, the helmet is mounted on a head form and then dropped from varying heights, with the head form aligned so that impact can occur at the sides, back, top, and front. The “severity index” is then calculated from measurements of acceleration to determine the helmet’s concussion tolerance. If a helmet has a severity index of higher than fifteen hundred, the helmet fails the test. With Lafferty observing, an employee at Capitol Varsity Athletic Company conducted two partial tests on the helmet in question, dropping it from a height of sixty inches, with impact to the top of the helmet only, since that is where Lafferty believed the point of impact was. First, the helmet was tested with no air added in the lower bladder, which resulted in a severity index of six hundred twenty-four. Next, the lower bladder was inflated to a pressure of 3.5 pounds per square inch, which resulted in a severity index of four hundred seventeen. Lafferty stated that although the helmet passed the test in both instances, the critical fact was that the failure to inflate the lower bladder decreased the energy-absorbing capability by about fifty percent. In conjunction with this finding, Lafferty then noted that the threshold for compressive fracture of the C5 body is about one thousand pounds of force and that the force sustained by Miller’s spine was at the threshold level (otherwise, he would have sustained additional fractures at other locations on the spine). Lafferty concluded that a fifty-percent increase in the energy absorbing capability of the helmet would have attenuated the forces to below the threshold level. Had the helmet been properly inflated, the helmet would have sufficiently absorbed the force of the impact, and the injury would have been avoided. In deciding whether Lafferty’s testimony was proper, we begin our analysis with a consideration of Evid.R. 702, which governs the admissibility of expert testimony. It provides: “A witness may testify as an expert if all of the following apply: “(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; “(B) The -witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; “(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply: — 611 — “(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles; “(2) The design of the procedure, test, or experiment reliably implements, the theory; “(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.” There is no question that Dr. Lafferty is a qualified expert who testified about a subject beyond the knowledge of lay persons. Evid.R. 702(A) and (B). Thus, at issue in this case is whether Lafferty’s testimony complied with the requirements of Evid.R. 702(C), ie., whether his opinion was reliable. In making this determination, our inquiry focuses on whether the principles and methods Lafferty employed to reach his opinion are reliable, not whether his conclusions are correct. See Staff Notes to Evid.R. 702. Additionally, to be admissible, the expert testimony must assist the trier of fact in determining a fact issue or understanding the evidence. Id.; State v. Boston (1989), 46 Ohio St.3d 108, 118, 545 N.E.2d 1220, 1231; State v. Bidinost (1994), 71 Ohio St.3d 449, 454, 644 N.E.2d 318, 323. In Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, the United States Supreme Court discussed the question of when expert scientific testimony is relevant and reliable. In Daubert, the court was faced with the issue of whether certain scientific evidence was admissible in a birth defects case. The trial court, in excluding the expert testimony, relied upon Frye v. United States (D.C.App.1923), 293 F. 1013, which held that an expert’s opinion is inadmissible unless it has gained “general acceptance” in the relevant scientific community. Id. at 1014. The Daubert court expressly rejected this argument and reversed the granting of summary judgment. Instead, it held, under Fed.R.Evid. 702, that expert scientific testimony is admissible if it is reliable and relevant to the task at hand. Id. at 589, 113 S.Ct. at 2795, 125 L.Ed.2d at 480. To determine reliability, the Daubert court stated that a court must assess whether the reasoning or methodology underlying the testimony is scientifically valid. Id. at 592-593, 113 S.Ct. at 2796, 125 L.Ed.2d at 482. In evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance. Id. at 593-594, 113 S.Ct. at 2797,125 L.Ed.2d at 482-483. Although these factors may aid in determining reliability, the inquiry is flexible. Id. at 594, 113 S.Ct. at 2797, 125 L.Ed.2d at 483-484. The focus is “solely on principles and — 612 — methodology, not on the conclusions that they generate.” Id. at 595, 113 S.Ct. at 2797, 125 L.Ed.2d at 484. Appellees challenge Lafferty’s theory (that a football helmet can protect the neck) on several grounds. First, appellees argue that the NOCSAE standard tests the potential for head injuries only. Thus, they state that Lafferty’s theory is not predicated upon any recognized scientific test method for evaluation of potential injury to the neck. Contrary to appellees’ position, we find that appellants presented sufficient evidence to support Lafferty’s theory and his use of the NOCSAE test. In their brief in opposition to appellees’ summary judgment motions, appellants attached several documents, which were admitted into evidence, to support Dr. Lafferty’s opinion that injuries to the neck can be avoided with proper headgear and that the NOCSAE test applies to head and neck protection. For instance, according to a publication printed by NOCSAE, that organization initially recognized that safe helmets could result in fewer head and neck injuries. In fact, in 1973, when the NOCSAE test standard was first published, NOCSAE acknowledged that the procedure for testing football helmets had been developed “[i]n an effort to minimize head and neck type injuries in football.” (Emphasis added.) A Bike publication describing its AirPower helmet also recognized that a proper helmet can help avoid trauma to the spinal cord and neck. This publication states: “What’s the basic reason for wearing a football helmet? WTien you get right down to it, the primary purpose of a football helmet is to protect the football player’s brain from the damaging effects of external blows to his skull. * * * In certain other cases the impact trauma to the head may transmit sufficient force to the neck that damage to the spinal cord occurs.” (Emphasis added.) Although the NOCSAE and the manufacturer removed references to the neck from later documents, the early publications support Dr. Lafferty’s opinions and can be considered by the trier of fact along with the new material. Appellees also argue that the NOCSAE test results are unreliable and have no relevance because Lafferty used another person to conduct the test and because Lafferty had poor recordkeeping skills. Whether Lafferty conducted the test himself is immaterial; appellants presented evidence that the test was conducted in a facility designed and equipped to conduct such tests. The technician’s credibility can be challenged at trial. Lafferty’s opinion, as well as the test protocol he used to conduct the NOCSAE test, is also an issue subject to attack upon cross-examination. Appellees further argue that the lower courts properly excluded Lafferty’s opinion, since his theory has not gained any acceptance in the scientific community and has not been subject to peer review. We flatly reject these arguments. Lafferty testified, in direct opposition to appellees’ expert, that there were — 613 — publications supporting his theory that, properly used, a helmet can prevent the type of injury suffered by appellant. These conflicting views bring the issue of credibility into play. However, even if Lafferty’s opinion has neither gained general acceptance by the scientific community nor has been the subject of peer review, these are not prerequisites to admissibility under Daubert, supra. See, also, Arnold v. Riddell, Inc. (D.Kan.1995), 882 F.Supp. 979, 990.1 Rather, they are just factors for a court to consider in determining reliability. Again, the Daubert court recognized that while peer review may be helpful, it is not absolutely necessary for an opinion to be admissible. In fact, the court stated: “Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability.” Id., 509 U.S. at 593, 113 S.Ct. at 2797, 125 L.Ed.2d at 483. Appellees further attack Lafferty’s theory by arguing that the underlying premise, that the helmet lining was deflated at the time appellant was injured, was never supported by any evidence. Once again, there was conflicting evidence on this point. Lafferty’s premise, that the helmet lining was deflated, was supported by two Ace employees who stated, by affidavit, that when helmets with inflatable liners left Ace, there was no air in the liners. There was also evidence that the outer valve of the helmet had been sealed shut, which could prevent inflation. In contrast, appellees presented evidence that when the school received helmets reconditioned by Ace, they came to the school properly inflated. This evidentiary conflict should not be resolved by summary judgment; instead, it proves that genuine issues of material fact remain at issue. Likewise, the fact that appellees’ experts provide opinions that are diametrically opposed to Dr. Lafferty’s does not support the exclusion of Lafferty’s opinion. In reviewing a summary judgment motion, a trial court should not reject one expert opinion for another simply because it believes one theory over the other. As stated by one court, “In analyzing the admissibility of expert testimony, it is important for trial courts to keep in mind the separate functions of judge and jury, and the intent of Daubert to * * * make it easier to present legitimate conflicting views of experts for the jury’s consideration.” Joiner v. Gen. Elec. Co. (C.A.11, 1996), 78 F.3d 524, 530. Thus, a trial court’s role in determining whether an expert’s testimony is admissible under Evid.R. 702(C) focuses on whether the opinion is based upon scientifically valid principles, not whether the expert’s conclusions are correct or whether the testimony satisfies the proponent’s burden — 614 — of proof at trial. Id.; Ambrosini v. Labarraque (C.A.D.C. 1996), 101 F.3d 129, 135. Furthermore, the reliability requirement of Daubert should not be used to exclude all evidence of questionable reliability, nor should a court exclude such evidence simply because the evidence is confusing. In re Paoli RR. Yard PCB Litigation (C.A.3, 1994), 35 F.3d 717, 744. Instead, there must be something that makes the scientific technique particularly overwhelming to laypersons for the court to exclude such evidence. Id. at 746. Thus, the “ultimate touchstone is helpfulness to the trier of fact, and with regard to reliability, helpfulness turns on whether the expert’s ‘technique or principle [is] sufficiently reliable so that it will aid the jury in reaching accurate results.’ ” DeLuca v. Merrell Dow Pharmaceuticals, Inc. (C.A.3,1990), 911 F.2d 941, 956, quoting 3 Weinstein’s Evidence (1988) 702-35, Section 702[03]. We find that appellants presented sufficient evidence to support the reliability of their expert’s theory under Evid.R. 702. Dr. Lafferty’s theory is not so complicated that it would overwhelm a jury. We find that his testimony could aid the trier of fact in determining whether the football helmet was a cause of injury to appellant’s neck. The trier of fact will then have the opportunity to weigh the expert opinion of Dr. Lafferty against those of appellees’ experts. The question remains, however, whether the opinion of Dr. Lafferty can still be excluded because the NOCSÁE testing procedures did not duplicate the conditions on the night of the accident. The trial court relied upon St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio RR. Co. (1935), 129 Ohio St. 401, 2 O.O. 396, 195 N.E. 861, to exclude Dr. Lafferty’s opinion on these grounds. We must determine whether this was an abuse of discretion. In St. Paul, a lumber company was destroyed by fire. Its insurers brought suit against a railroad company, alleging that cinders from its trains started the fire. The railroad company conducted laboratory experiments to help prove that its trains did not cause the fire. The results of the experiment were admitted into evidence, and the jury returned a defense verdict. The court of appeals and this court affirmed. We held that the experiments were admissible. We stated that “[e]vidence of experiments performed out of court, tending to prove or disprove a contention in issue, is admissible if there is a substantial similarity between conditions existing when the experiments are made and those existing at the time of the occurrence in dispute; dissimilarities, when not so marked as to confuse the jury, go to the weight rather than the admissibility of the evidence.” Id. at paragraph one of the syllabus. The trial court focused on the above language to exclude Dr. Lafferty’s opinion and the test he used to base his opinion upon. The court of appeals agreed. However, we believe that the lower courts were incorrect in holding that the — 615 — NOCSAE test was inadmissible because the test did not duplicate conditions on the playing field at the time appellant was injured. Appellants never intended to use the test for that purpose. Instead, the NOCSAE test was being used to analyze whether the football helmet was able to perform adequately under conditions of use. The test was not relied upon to replicate the playing conditions or the way in which appellant was injured. In Leichtamer v. Am. Motors Corp. (1981), 67 Ohio St.2d 456, 21 O.O.3d 285, 424 N.E.2d 568, a similar argument was made but rejected by this court. That case involved products liability claims stemming from a pitchover of a Jeep. Plaintiffs alleged that the sheet metal supporting the roll bar was too thin and collapsed when the jeep pitched over, causing them to sustain injuries. The trial court admitted an experiment conducted by plaintiffs’ expert witness. Although we found that the trial court did not abuse its discretion in admitting this expert testimony, we made several observations. We stated: “Though the experiment was performed under somewhat dissimilar conditions than the mishap, the experiment was offered to demonstrate the weakness of the sheet metal under stress. It was not offered to recreate the accident.” Id. at 473, 21 O.O.3d at 296, 424 N.E.2d at 580. Therefore, we stated that the experiment was not so misleading that it should be excluded. Additionally, we recognized that “with the help of cross-examination, the jury could recognize the dissimilarity between the experiment and the mishap. The dissimilarity, then, goes to the weight, not the admissibility of the evidence.” Id. at 473, 21 O.O.3d at 296, 424 N.E.2d at 580. We are also persuaded by the rationale set forth by the Illinois court in Galindo v. Riddell, Inc. (1982), 107 Ill.App.3d 139, 62 Ill.Dec. 849, 437 N.E.2d 376, which involved an action against a different football helmet manufacturer. The court stated, “In general, experiments are incompetent as evidence unless the essential conditions of the experiment are shown to be the same as those existing at the time of the accident. However, when an [out-of-court] experiment is not represented to be a reenactment of the accident and it deals with one aspect or principle directly related to the cause or result of the occurrence, the exact conditions of the accident need not be duplicated.” Id. at 144, 62 Ill.Dec. at 854, 437 N.E.2d at 381. Under the facts presented here, it is virtually impossible to recreate the conditions under which appellant sustained his injuries. Quite obviously, if we were to hold that a test or experiment must exactly recreate the conditions present at the time an injury was sustained, a plaintiff would rarely be able to overcome an opponent’s motion for summary judgment. We are unwilling to require such proof. Instead, we agree with the rationale from the Leichtamer and Galindo decisions. Any dissimilarity between the NOCSAE test and the — 616 — conditions on the football field at the time appellant was injured goes to the weight of the evidence, not to its admissibility. While a determination as to the admissibility of expert testimony is a matter generally within the discretion of the trial judge and will not be disturbed absent an abuse of discretion, Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 24 O.O.3d 322, 436 N.E.2d 1008, that discretion is not unlimited. Here, since Dr. Lafferty’s opinions met the requirements of Evid.R. 702 and since the out-of-court test was reliable and admissible, the trial court abused its discretion in excluding Dr. Lafferty’s expert opinion. II. Expert Opinions of Additional Witnesses The trial court relied on Zelenka v. Indus. Comm. (1956), 165 Ohio St. 587, 60 O.O. 524, 138 N.E.2d 667, to exclude the testimony of two of appellants’ other expert witnesses on the ground that their opinions were based solely upon the opinion of Dr. Lafferty. Zelenka held that “[a]n expert witness may not express his opinion based upon evidence which he has heard or read on the assumption that the facts supported thereby are true, where such evidence is voluminous, complicated or conflicting or consists of the opinions, inferences and conclusions of other witnesses.” Id. at syllabus. In this case, the trial court found that the opinions of Dr. Richard P. Borkowski and Dr. Melvin H. Rudov were inadmissible. Dr. Borkowski, a sports safety expert with thirty-four years of experience as a physical education teacher, football coach, and athletic administrator, offered his opinion on the issue of safety and whether various appellees followed basic safety precautions in regard to the proper use of the football helmet. In his affidavit, Borkowski stated that appellees failed to properly fit appellant with the helmet, failed to properly instruct him how his helmet should be fit, and failed to warn him of the need to properly inflate and maintain the appropriate pressure in the helmet’s air liners. Borkowski concluded that these failures were a proximate cause of appellant’s injuries. Melvin Rudov, a forensic psychologist and human factors engineer, also testified on whether the helmet was properly sized for appellant and appropriately fitted by appellees. Borkowski’s and Rudov’s above opinions were limited to their areas of expertise (sports safety and human factors). We find that the trial court erroneously relied upon Zelenka as a basis for excluding these witnesses. Evid.R. 703 and 705 provide that an expert’s opinion may be based on facts or data perceived by him or admitted into evidence. See State v. Solomon (1991), 59 Ohio St.3d 124, 570 N.E.2d 1118. Here, Borkowski and Rudov based their opinions on the evidence presented, that there was no air in the liners when appellant was — 617 — injured.2 Under these circumstances, the trial court abused its discretion in excluding these expert opinions. III. Conclusion In order for summary judgment to be granted, it must be demonstrated that there is no issue as to any material fact, that the moving party is entitled to judgment as a matter of law, and that reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. In seeking summary judgment, the moving party bears the burden of demonstrating that there remain no genuine issues of fact. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801. Furthermore, the evidence must be construed in the light most favorable to the nonmoving party. Civ.R. 56(C). In this case, we have found that the trial court improperly excluded appellants’ expert opinions. Since these opinions are in direct conflict with those opinions expressed by appellees’ experts, there remain genuine issues of material fact on the liability issues presented.3 Therefore, we conclude that the trial court abused its discretion in granting appellees’ motions for summary judgment. Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings. Judgment reversed and cause remanded. Resnick and Pfeifer, JJ., concur. Douglas, J., concurs in the syllabus and judgment. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent. Footnotes [1] This court has consistently rejected Frye’s “general acceptance” test. State v. Williams (1983), 4 Ohio St.3d 53, 4 OBR 144, 446 N.E.2d 444 (admissibility of voice analysis); State v. Pierce (1992), 64 Ohio St.3d 490, 495-497, 597 N.E.2d 107,112 (admissibility of DNA evidence), and we do not intend to adopt it now. [2] Moreover, we have previously questioned the validity of Zelenka in Seley v. G.D. Searle & Co. (1981), 67 Ohio St.2d 192, 206, 21 O.O.3d 121, 129-130, 423 N.E.2d 831, 841-842. [3] We express no opinion on the argument of Athletic Helmet, Inc. that it cannot be held liable as a successor corporation, since the lower courts did not address this issue.