Broken Beer Bottle Expert Precluded from Testifying

Bartender Bill Toomey was stacking an ice bin with 12-ounce bottles of Coors Light on May 23, 2009.  He grabbed two bottles with his left hand, placing one bottle between his index finger and thumb and another bottle between his index and middle fingers.  As he was placing the bottles in the ice bin, the bottle between his index and middle fingers exploded, severely injuring his index finger.  He was unable to work as a bartender for 26 weeks following this accident.

Toomey sued Coors, claiming the bottle that exploded was defective.  His case relied heavily on the opinion of George Pecoraro.  Pecoraro gave the opinion that the glass for this beer bottle was not thick enough to withstand fracture.  He compared the thickness of Coors Light bottles with other brands (including Bud Light and Sam Adams Light) by using a hammer to break bottles and then measuring the pieces of glass that stuck to the bottles’ labels.  He found that the Coors Light bottle glass was thinner (.069 inches compared with .091).   In Pecoraro’s opinion, the glass on the Coors Light bottles should have been thicker, the bottles should have been better inspected, and there should have been warnings on their labels indicating that the bottles might fracture during handling.

Coors moved to preclude Pecoraro’s testimony and the Court granted the motion. [1]   The Court noted that expert challenges in federal court are governed by Federal Rule of Evidence 702, which is based on the U.S. Supreme Court’s Daubert decision. [2]

Coors argued both that: (a) Pecoraro was not qualified to give his opinion and (b) his opinion was not based on reliable data and methodology.  The Court agreed that Pecoraro’s methodology was flawed.  The methodology he used (i.e., breaking bottles with a hammer and then measuring pieces) had not been tested or subjected to peer review.  When asked at his deposition where he came up with his methodology, Pecoraro answered “[m]y head.”  In addition, Pecoraro did not attempt to reconstruct the accident and did not consider or rule out alternate causes of the accident.  The Court concluded that Pecoraro’s theory was “too speculative.”

Because the Court ruled that Pecoraro’s opinion was not reliable, it did not rule whether or not he was “qualified.”  However, the Court questioned whether Pecoraro’s background was sufficient, since he never worked for a company that designed or manufactured glass containers or bottles.

Because plaintiff could not prove his case without an expert, the Court granted Coors’ summary judgment motion and dismissed the case.

Bottom Line:  Bottom Line: This was not a subrogation case. However, it is instructive because it is a products liability case involving a Daubert challenge to an expert. The ruling re-inforces that a judge must make a threshold determination as to an expert’s opinion before that expert can testify at trial. The expert must both be qualified and must base his opinion on reliable data and methodology. Just because an expert has an impressive cv with lots of degrees and certifications, it does not mean he is “qualified” to give an opinion on any topic – he must be “qualified” in the specific field in which he/she wants to testify. Further, an expert should not just “make up” his/her methodology, but must use “reliable” methodology. For example, a fire investigator following NFPA 921 when performing a fire origin and cause investigation will often survive a Daubert challenge since he/she is relying on a proven and tested methodology. Experts should have their reports “peer-reviewed” by someone else. Experts should, to the extent possible, test their theories. Experts should always rule out other causes. Defendants have been aggressively challenging experts and the Courts have not infrequently been precluding experts who either weren’t qualified in the field in which they wanted to testify, or the methodology used was not proven or reliable. And, please, don’t take a hammer to any beer bottles!

[1] William Toomey and Mary Toomey v. Millercoors LLC, Civil Action No.: 12-CV-3295 (EDNY February 27, 2015)
[2] Daubert v. Merrill Dow, 509 US 579 (1993). Most FRE 702 challenges are commonly referred to as “Daubert” challenges.

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