Pathologist Expert Witness Testimony Partially Allowed

Plaintiff hired pathology expert witness to opine on pain and suffering in a products liability case.  Defendant filed a motion to exclude the testimony.  The court granted in the motion in part and denied the motion in part.

Facts:  This case (Ostrinsky v. Black & Decker – United States District Court – Northern District of Illinois – June 14th, 2016) involves products liability.  The plaintiff (Ostrinsky) was in his home when a toaster made by the defendant (B&D) failed to pop slices of bagels and started a fire.  Due to the fire, Ostrinsky allegedly suffered from carbon monoxide and smoke inhalation and died. His estate filed suit against B&D for strict product liability and wrongful death negligence.  In order to prove their case, the defendant hired Dr. Mary E. Case MD (pathology expert witnesses) to opine that Ostrinksy was conscious and experienced pain and suffering.  Under Illinois law, consciousness is a necessary part when seeking damages for pain and suffering.

The defendants filed a motion to exclude Case’s expert testimony is not reliable and will not assist the trier of fact.

Discussion:  The defendant argues that Case has not reliably opined on the amount of time that Ostrinksy experienced pain and suffering while conscious.  Case provided testimony that Ostrinsky would have been conscious for 10 minutes or more while experiencing pain and suffering.   The defendant states that the atmospheric concentration of carbon monoxide in the air is a key factor in determining the rate at which an  individual’s carboxyhemoglobin level increases.  They state that Case did not conduct a test of the atmospheric concentration of carbon monoxide during the fire.  In addition, she admitted that she did not know the measurement of the atmospheric concentration of carbon monoxide at the residence.   Thus, the court decided that her opinions regarding how long Ostrinksy experienced pain and suffering is speculation, and thus, not admissible under Daubert.

Regarding loss of consciousness, Case provided evidence and literature citations for estimating the stages that Ostrinsky would have gone through before losing consciousness.  She states that Ostrinsky, after inhaling carbon dioxide, may not have immediately lost consciousness.  The defendant disagreed, stating that there was no way of knowing when Ostrinksy lost consciousness.  The court disagreed with the defendant, stating that Case’s opinion in this regard are relevant and reliable and will help the trier of facts.

Last, Case’s opinion that Ostrinsky would have suffered pain and suffering while conscious is also relevant, opined the court.  This opinion would assist the trier of fact by providing information on how the body reacts to carbon monoxide inhalation before unconsciousness sets in.  The court stated that the defendant’s arguments go to the weight of the evidence, not the admissibility, and that they will get a chance to rebut Case’s opinions at trial.

Conclusion:  Plaintiff’s expert will not be able to present an opinion on how long the deceased experienced pain and suffering, but will be able to offer an opinion that he would have remained conscious after inhaling carbon monoxide.

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