Emergency Medicine Expert Witness Testimony Allowed in Construction Personal Injury Case.

Summary: Emergency Medicine Expert Witness testimony allowed even though the defendant argued that the expert’s use of descriptive words to describe the decedent’s pain is subjective in nature.

Facts:  This case (Burrows et al v. 3M Company – United States District Court – Western District of Washington – August 12, 2022) involves a personal injury claim.  The plaintiff, Grace Burrows, alleges that her husband, Walter Burrows, was working at a construction site when he fell off the edge of a “pier cap”.  Mr. Burrows was wearing a 3M Nano-Lok Self-Retracting Lifeline, but it severed after making contact with the pier cap’s concrete edge.  Mr. Burrows died as a result of his injuries.  The plaintiff sued 3M, claiming that it did not warn about the type of edge that severed the Nono-Lok.   The plaintiff hired Emergency Medicine Expert Witness Dr. Anthony Haftel to provide expert witness testimony.  The defendant filed a motion to exclude this expert from testifying.

Discussion:  The defendant does not question the qualifications of Dr. Haftel.  Rather, 3M states that Dr. Haftel’s expert witness testimony is not based on sufficient facts or data and is not the result of reliable principles.  In addition, the defendant claims that the probative value is outweighed by the danger of unfair prejudice.

First, 3M argues that Dr. Haftel’s conclusion that Mr. Burrows had pain before he died is not based on any facts or data. In addition, the defendant claims that Dr. Haftel’s opinions are not based on valid methodology, only his own experiences.  The court disagrees, stating that Dr. Haftel’s expert opinions are based on thirty-five years as an emergency room physician in addition to his review of Mr. Burrow’s medical records and autopsy.

Also, the defendant alleges that Dr. Haftel’s classification of Mr. Burrow’s pain should be excluded because he used descriptive words which are subjective non-clinical terms. The court opines that medicine requires a degree of uncertainty and that pain does not have objective precision.  The court thus concludes that the defendant can argue this issue at cross examination.

Conclusion:  The motion to exclude the expert witness opinion of Dr. Anthony Haftel is denied.