Human Factors Expert Not Allowed to Opine on the Lack of a Fear Response

Randall Mulvaney, a painter employed by Plaintiff C&L Contracting, Inc., fell to his death while working onboard the barge Integrity, which was docked for maintenance and repairs at Fraser Shipyards in Superior, Wisconsin. Mulvaney's estate, his wife Carri, his son Connor, C&L Contracting, and C&L Contracting's workers compensation insurer American Interstate Insurance Company have sued Fraser and its insurer Travelers Property Casualty Company of America for negligence in connection with Mulvaney's death.

Both sides have moved to exclude testimony from the other side's expert witnesses.Defendants sought to exclude the testimony of Bruce Niendorf and Brad Grunert while Plaintiffs sought to exclude Jay Todd's opinions under Rule 702 as irrelevant and unhelpful.

Finance Expert Witness

Bruce D. Niendorf is a Professor Emeritus, having recently retired from The University of Wisconsin – Oshkosh, Department of Finance and Business Law, where he last held the title of Distinguished Professor of Finance.

He began his teaching career in 1994. While at UW-Oshkosh he also did research and consulting work for litigation, spending 70-80% of his time teaching and the balance of his professional time on research and consulting for legal matters. He estimated he provided opinions in 50-75 wrongful death cases using the same economic resources and methodologies for his opinions as in the Mulvaney matter.

Want to know more about the challenges Bruce Niendorf has faced? Get the full details with our Challenge Study report.

Psychology Expert Witness

Brad K. Grunert has over 25 years of experience working with hand and limb trauma. He has extensive experience in returning injured workers to employment. He is also widely published in the field of post-traumatic stress disorders and adjustment to injury.

Get the full story on challenges to Brad Grunert’s expert opinions and testimony with an in-depth Challenge Study.

Human Factors Expert Witness

James Jay Todd holds a Ph.D. in Psychology with an emphasis in Neuroscience from Vanderbilt University. As a human factors expert, he analyzes complex questions involving human perception, attention, decision-making, and performance across transportation, product, and premises matters.

Gain a comprehensive understanding of Jay Todd’s qualifications and casework history with his Expert Witness Profile report.

Discussion by the Court

1. Bruce Niendorf

Bruce Niendorf is an economist whom Plaintiffs retained to determine the value of Randall Mulvaney's lost earning capacity and domestic labor. Niendorf calculated that Mulvaney's lost earning capacity through age 70 was $405,357, and that his lost domestic labor through his life expectancy of 81.9 years was $488,168.

Defendants did not challenge Niendorf's opinion about Mulvaney's lost earning capacity. But they contended that Niendorf's opinion about Mulvaney's lost domestic labor should be excluded because Niendorf did not explain the assumptions underlying his calculations.

To calculate Mulvaney's lost domestic labor, Niendorf used Wisconsin labor statistics to determine an average wage for the types of domestic labor that Mulvaney commonly did. Then, he applied that wage to calculate the value of Mulvaney's labor, assuming a life expectancy of 81.9 years and assuming that Mulvaney did an average of 3.4 hours of domestic labor per day (the average for men his age according to the 2023 American Time Use Survey). Finally, he adjusted for interest rate changes and the present value of money.

Defendants argued that Niendorf's opinion is unreliable because he used generic data without explaining how it applies to this case. In particular, Defendants take issue with Niendorf's assumption that Mulvaney did 3.4 hours of domestic labor per day, because that assumption is based solely on the average for a man of Mulvaney's age, not on any analysis of Mulvaney's specific domestic labor habits. Defendants argued that the average value is not a useful input in this case, because there is evidence that Mulvaney did less work than average. Mulvaney's wife testified that he travelled often for work and was home only about 20 percent of the time. Niendorf admitted in his deposition that he was aware that Mulvaney travelled a lot, but he didn't account for that fact in his domestic labor calculation.

The Court will grant the motion to exclude Niendorf's opinion under Rule 702. If Niendorf had explained why the generic data that he used accurately reflected Mulvaney's domestic labor, then Defendants' arguments to the contrary would go to the weight of Niendorf's testimony, not its admissibility. But here, Niendorf failed to provide a "rational connection" between the generic data he used and Mulvaney's specific case. In fact, Niendorf admitted in his deposition that the generic data might not apply to Mulvaney's case because Mulvaney's wife said that he was not home very often. But Niendorf did not account for that fact in his calculations and he did not explain why.

Plaintiffs pointed to two out-of-circuit district court cases approving a domestic labor valuation based on the American Time Use Survey. But those cases are not persuasive. The reasoning in those cases is simply too sparse to allow for any useful comparison with this case.

The Court concluded that Niendorf failed to explain how he applied his methodology for calculating the value of lost domestic labor to the facts of this case. His opinion on that issue is inadmissible under Rule 702.

2. Brad Grunert

Defendants also sought to exclude the testimony of Brad Grunert, a psychologist who opined that Randall Mulvaney would have experienced "panic, terror, and horror" during the brief fall to his death. Plaintiffs responded that they aren't offering Grunert as a witness, so the Court will deny the motion to exclude as moot.

3. Jay Todd

Todd was originally retained as a rebuttal witness to Brad Grunert. After Plaintiffs decided to withdraw Grunert, they asked Defendants to voluntarily withdraw Todd, but Defendants declined to do so. Now, Plaintiffs seek to exclude Todd's opinions under Rule 702 as irrelevant and unhelpful.

As an initial matter, Defendants don't dispute that Todd's rebuttal opinions are irrelevant, because Grunert isn't going to testify. So the Court will consider only Todd's two non-rebuttal opinions. First, Todd opined that Mulvaney would have had limited conscious experience of what was happening, because the fall lasted only 1.6 to 2.0 seconds and it would have taken Mulvaney's brain at least half a second to produce a fear response. Second, Todd opined that the yell that several of Mulvaney's coworkers heard him make as he began to fall may have been an involuntary reaction as opposed to a conscious indicator of fear.

The Court concluded that Todd's opinion about Mulvaney's conscious experience of the fall would be unhelpful to the jury's evaluation of the relevant issues. Defendants argued that that's not the case here, because, although laypersons know what fear feels like, they "do not know how long the brain takes to register and process conscious fear, or whether a roughly two-second window permits the sequence of panic terror, and horror Plaintiffs describe." That's true, but Defendants don't say why the brain's processing time matters here. If Todd had opined that Mulvaney hadn't had time to experience any fear, that would be another matter. But Todd's opinion is that Mulvaney had 1.1 to 1.7 seconds to experience fear, as opposed to 1.6 to 2.0 seconds. That's a trivial difference that adds nothing to what jurors would already know from common knowledge, which is that it took Mulvaney a couple seconds to fall to his death. How much fear Mulvaney experienced during that short time period is up to the jury to decide, and Todd's testimony would not aid in that decision.

For the same reason, the Court will also exclude Todd's opinion that Mulvaney's yell may have been an involuntary reaction as opposed to a conscious indicator of fear. Todd says that peer-reviewed research distinguishes between yelling ("communication using sounds that are components of language") and screaming ("meaning is communicated by the profile of the non-language sounds"). He says that the lay witnesses that described Mulvaney's sound as a yell may not have understood this distinction, so Mulvaney's sound may actually have been a scream. If so, "peer-reviewed studies show that screaming is not purely an indicator of conscious awareness or foresight; it can be an involuntary or instinctive reaction to non-fear-related stimuli, such as being startled by a sudden loss of balance or being surprised by another person."

Todd's testimony about Mulvaney's yell would be confusing and unhelpful to the jury. His analysis consists of semantic distinctions between yelling and screaming and between being startled, experiencing fear, and experiencing surprise. But these noises and emotions are within the common experience of jurors, and the technical definitions would not help them evaluate what happened to Mulvaney. It will be up to the jury to listen to the lay testimony about Mulvaney's yell and determine what inferences to draw from that testimony.

Held

• The Court granted Defendant's motion in limine to exclude the testimony of Bruce Niendorf about lost domestic services.

• The Court denied in moot the Defendant's motion in limine to exclude the testimony of Brad Grunert.

• The Court granted the Plaintiff's motion in limine to exclude the testimony of Jay Todd.

Key Takeaway

The Court's analysis of the admissibility of an expert's testimony is based on the opinions, conclusions, and the basis and reasons for them in the expert's report. An expert may not cure deficiencies in his report with later deposition testimony. The proponent of expert evidence bears the burden of establishing that the expert's testimony is admissible.

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