Court precludes the expert from offering an opinion on someone else’s subjective beliefs or feelings

Vincent McKinney’s death on April 15, 2021, at a U-Haul construction site led to a lawsuit, filed by his surviving spouse and next kin Alberta Louise Perry, Plaintiff, with Jenkins & Stiles, LLC, a construction company and the general contractor for the site, being the Defendant. Despite some disputed facts, parties agreed that McKinney, who was delivering cargo to the construction site, specifically five bundles of insulated panels, met his demise when the cargo, being unloaded by Curtis Kennedy, a forklift operator and jobsite superintendent for the Defendant, fell off the trailer and onto McKinney. McKinney lost his life on the scene.

According to Kennedy, he directed McKinney to complete the unstrapping of the load so that Kennedy could initiate the removal of the cargo from the trailer using a forklift. Kennedy asserted that McKinney had removed all the straps before the offloading began, although he wasn’t entirely certain. Kennedy testified that, based on McKinney’s body language, he believed McKinney knew he was approaching with the forklift. As Kennedy commenced offloading the cargo, the bundles fell off the forklift and landed on McKinney, who was still positioned next to the trailer. 

Shortly after the incident, an investigator named Michael Johnson (“Johnson”), representing the Tennessee Occupational Safety and Health Administration (“TOSHA”), arrived at the scene. Johnson conducted interviews with several witnesses, including Robert Hutton (“Hutton”), who was then an employee of Chattanooga Fire, LLC. During his statement to the TOSHA investigator, Hutton mentioned that, before the incident, Kennedy had already unloaded some cargo, as he saw it stacked nearby. Hutton reported hearing someone say, “Curtis your [sic] clear, Go”. Following that, he heard a crash and observed McKinney under the cargo. Hutton explicitly stated, “Everyone was clear, Curtis had a good visual of the work area. I didn’t see anything that appeared to be unsafe”. Unfortunately, Hutton passed away on August 3, 2022.

As part of its expert disclosures, the Defendant identified Charles A. Eroh, P.E. Among several other conclusions, Eroh asserted that McKinney bore responsibility for the incident. This was attributed to his departure from the safe area at the driver’s side truck fender and entering the fall zone. Eroh claimed that McKinney was fully aware of ongoing offloading activities and had verbally communicated with Kennedy to proceed with the unloading.

The Plaintiff contested Eroh’s conclusion under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. The challenge asserted that Eroh’s determination that McKinney bore responsibility would not assist the jury since it was the jury’s role to make that determination. Additionally, the Plaintiff argued that Eroh should not be allowed to testify about McKinney’s state of mind. The Plaintiff further contended that Eroh should be prevented from referencing Hutton’s statement. In response, the Defendant generally argued that Eroh’s opinion was based on reasonable inferences drawn from his accident investigation and that he had the right to rely on the evidence he considered.

Engineering Expert Witness

Charles A. Eroh is a professional engineer who works as a Principal Consultant at Rimkus Consulting Group. He is expected to testify within a reasonable degree of professional certainty in the field of commercial machinery operation and construction site safety. Charles Eroh will offer testimony on issues such as training and certification of forklift operators and construction site workers, industry standards in forklift operations and construction site procedures, industry standards of equipment maintenance, forklift operating capabilities, and service, maintenance, inspection and troubleshooting for type of forklift used on April 15, 2021, and post-accident inspections to determine cause.

Discussions by the Court

Federal Rule of Evidence 702 required judges to ensure the relevance and reliability of any scientific testimony or evidence. The Court’s gatekeeping function, as established in Daubert v. Merrell Dow Pharmaceuticals, Inc., mandated that scientific testimony or evidence, including that based on specialized knowledge, be both relevant and reliable. The party offering the expert testimony bore the burden of proving admissibility, and district Courts had leeway in determining the reliability of expert testimony, with decisions subject to review for an abuse of discretion. The Court applied the current version of Rule 702, effective December 1, 2023, which clarified the preponderance standard for reliability-based requirements.

According to the Plaintiff, Eroh’s opinion that McKinney bore responsibility for the incident was deemed unhelpful to the jury, as it was the jury’s role to determine such issues. Although Eroh may have based his opinion on reasonable inferences drawn from his accident investigation, including a review of the TOSHA report, Hutton’s written statement, Kennedy’s deposition, and other relevant information, the Court agreed that it constituted a legal conclusion. The Court cited Asbury v. MNT, Inc., No. CIV. 12-252 KG/RHS, 2014 WL 6914235, (D. N.M. Apr. 22, 2014), which struck an expert’s opinion as an impermissible legal conclusion. The Court further highlighted that experts were not permitted to render legal conclusions, as explained in United States v. Melcher, 672 F. App’x 547, 552 (6th Cir. 2016), when he defines the governing legal standard or applies the standard to the facts of the case. Legal conclusions were considered unhelpful to the jury since they instructed the jury on the verdict to reach. Accordingly, the Court ruled that Eroh’s opinion assigning responsibility to McKinney for the incident was not admissible.

The Plaintiff also contested Eroh’s conclusion asserting that McKinney “was fully aware of ongoing offloading activities and had verbally communicated with Kennedy to proceed with the unloading”. Plaintiff argued that determining whether McKinney was fully aware was beyond Eroh’s expertise as he could not “read minds”. Eroh based this opinion on Hutton’s written statement, and Plaintiff contended that it was improper to rely on Hutton’s statement due to its inadmissible hearsay nature. The Plaintiff asserted that allowing the introduction of inadmissible hearsay through an expert’s opinion would be extraordinarily prejudicial.

The Defendant responded by asserting that an “expert may rely on hearsay testimony”. Given that they retained Eroh to “inspect the accident site and determine the cause of the accident”, the Defendant argued that Eroh was permitted “to reference the witness statement in discussing his opinions and bases for them”. The defense contended that not only did Eroh rely on Hutton’s statement, but he also drew from various sources, including the TOSHA report, Kennedy’s deposition, his site inspection, and the photographs and videos captured by the Knox County Sheriff’s Office.

The Plaintiff also mentioned a video recording taken by Attorney Graham Thompson on April 19, 2023, which included Hutton’s statements. However, according to the Defendant, Eroh reviewed this video after authoring his report, and “it did not form the basis of the opinions Eroh expressed in his written report”. The Defendant further stated that “Eroh testified in his deposition that although he reviewed that video, he did not remember what was said in it, and he believed it was similar to what was contained in Hutton’s written statement”. Since Eroh did not rely on the video recording, the Court did not address it.

In reviewing the parties’ arguments, two issues were identified: (1) whether Eroh was allowed to rely on Hutton’s statement in forming his opinion, and (2) whether Eroh was permitted to express opinions about McKinney’s state of mind. Regarding the issue of Eroh’s opinion about McKinney’s state of mind, specifically that McKinney “was fully aware of ongoing offloading activities”, the Court ruled that Eroh was not allowed to opine at trial about McKinney’s state of mind. The Court cited the principle that “an expert may not offer an opinion on someone else’s subjective beliefs or feelings”. The Court highlighted that experts can rely on a witness’s testimony but may not opine on someone’s thoughts. Consequently, the Court did not need to address the first issue in the context of the Plaintiff’s motion. The Court noted that the admissibility of Hutton’s statement was being contested through motions in limine filed by both Plaintiff and Defendant.

Held

The Court granted in part and denied in part Plaintiff’s Motion to Exclude or Limit the Testimony of Charles A. Eroh and Any Undisclosed Opinion Testimony by Defendant Jenkins & Stiles. Eroh was not allowed to testify that McKinney bears responsibility for the incident, nor was he permitted to provide testimony about McKinney’s subjective beliefs. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways

The expert testimony in this case played a crucial role in determining liability for the tragic incident at a U-Haul construction site, where a cargo unloading operation led to the death of Vincent McKinney. Charles A. Eroh, P.E., identified by the Defendant as an expert, asserted that McKinney bore responsibility for the incident, citing his departure from a designated safe area and entering the fall zone. However, the Court, applying Rule 702 of the Federal Rules of Evidence, ruled that Eroh’s opinion assigning responsibility was inadmissible as it amounted to a legal conclusion. The Court emphasized that experts cannot render legal conclusions, particularly those instructing the jury on the verdict to reach. Additionally, the Court held that Eroh’s opinion on McKinney’s state of mind, specifically regarding awareness of ongoing offloading activities, was not admissible, as experts cannot offer opinions on subjective beliefs or feelings. The admissibility of witness statements, including Hutton’s, was contested due to hearsay concerns, with the Court emphasizing the importance of avoiding the introduction of inadmissible evidence through expert opinions. Overall, the Court’s rulings underscored the need for expert testimony to adhere to legal standards, focusing on admissible evidence and avoiding impermissible legal conclusions or opinions on subjective states of mind.