Court of Appeals Affirms Excluding a Liability Expert

I recently attended a panel session where current state district court judges discussed the rate of successful motions in limine to exclude expert witnesses, among other topics.  These motions are common, but apparently not often successful.  How might you identify situations where the motion might have a greater chance for success?

Young v. Circus Circus Casinos was a personal injury case where the plaintiff alleged he injured his back “when he leaned on an elevator handrail and it broke.”[1]  Plaintiff designated “Dr. C. Stephen Carr, an expert on vertical transportation engineering and accident investigation. However, the district court excluded portions of Dr. Carr’s testimony and later struck other portions of his testimony.”

The district court first excluded evidence gathered during a site visit that occurred approximately two years after the incident.  “That inspection revealed that Circus Circus had installed a different type of handrail in other elevators, and that the handrails in other elevators were loose.”  Plaintiff argued that “evidence was relevant to show that elevator handrails were ‘loose all the time’ and that the incident was not a ‘freak’ occurrence.”  He also argued “there was a substantial similarity between the test Dr. Carr conducted and the conditions actually present at the time of the injury….”

The district court was affirmed.  First, the new handrail was obviously a subsequent remedial measure.  As to the fact the new handrail was also “loose,” “although evidence of a condition’s existence may support an inference that the condition existed at a earlier time, the evidence’s reliability and admission into evidence is within the trial court’s sound discretion.”  Here, the district court could have admitted the evidence but remained well within its discretion in determining “this evidence was remote in time to the incident and could have unfairly prejudiced the jury against Circus Circus.”

Second, Plaintiff argued the district court erred by excluding “Dr. Carr’s testimony as to how often elevator handrails should be inspected, and his opinion that Circus Circus breached the standard of care for failing to timely inspect the handrail.”  That argument also quickly failed.  “Dr. Carr admitted that his testimony as to the frequency of inspections was not based on any treatise, code, manual, or publication, and the record demonstrates his opinion was not based on any recognized methods but instead relied on assumption and conjecture.”

[1] No. 70551, 2018 Nev. App. Unpub. LEXIS 288 (Ct. App. April 26, 2018).