Human Factors Engineering Expert Witness Testimony Allowed In Part

Plaintiff filed suit against the defendant related to a personal injury claim.  Plaintiff hired a Human Factors Engineering Expert Witness to provide testimony.  Defendant filed a motion to exclude this expert from testifying.  The court denied the motion in part and granted it in part.

Facts:  This case (Lough v. BNSF Railway Company – United States District Court – District of New Mexico – June 16th, 2019) involves a personal injury claim.  The plaintiff alleges that he injured his ankle after his safety vest snagged a doorway bolt.  The plaintiff alleges that the defendant should have given him a vest that didn’t snag or one that would “breakaway” if snagged.  The plaintiff hired Terence J. Fischer (Human Factors Engineering Expert Witness) to provide testimony on his behalf.  The defendant has filed a motion to exclude this expert from testifying.

Discussion:  The defendant alleges that Mr. Fischer is not qualified to render an opinion in this case because 1) he has never worked for or been retained by a railroad and 2) does not have any case experience with safety vests.  The court opines that Mr. Fischer is qualified to render expert testimony as he is an engineer with 33 years experience and he is board certified in professional ergonomics.  The fact that he has never been an expert witness in a similar case or developed experience with safety vests goes to the weight of the testimony and not the admissibility.

The defendant also argues that Mr. Fischer’s testimony is not reliable because it does not rely on calculations, simulations, or testing showing that a breakaway vest would have detached.  The defendant argues that Mr. Fischer did not perform any scientific studies or produce any calculations or data which support his conclusions..  In addition, the defendant argues that Mr. Fischer did not study the vest involved in the incident and did not study peel force specifications.

The court opines that there is sufficient facts and data to support Mr. Fischer’s conclusion that the plaintiff’s injury could have been prevented if he had been wearing a breakaway vest.  In coming up with his opinion, Mr. Fischer relied on the defendant’s rule books, OSHA regulations, and an ASSE report discussing an ANSI standard.  The court also notes that Mr. Fischer relied on 26 different reference materials.

Also, the court opines that Mr. Fischer used a post-accident “typical human factors analysis” which is used by others in the field of human factors and involved reviewing numerous materials.

The defendant also argues that Mr. Fischer’s opinions on breakaway vests should be deemed as unreliable because he did not point to any federal law, rule, or railroad industry standard which recommended the use of breakaway vests.  The court agrees, to a point, but note that a railroad’s duty is to provide a reasonably safe workplace and therefore the standard of care is whether the defendant acted as a reasonably prudent employer.

However, the court does opine that MR. Fischer may not extrapolate from affidavits that railroad “custom and practice” is to issue breakaway vests.

Conclusion:  The motion to exclude the expert witness testimony of Terence J. Fischer is granted in part and denied in part.