In my September 2016 blog post, The Impact of the Smart Home Revolution on Product Liability and Fire Cause Determinations, I forecast that “dumb products made smart by connecting to the internet will present a new layer of complexity when a failure occurs.” When a product fails and causes property damage or bodily injury, experts are frequently tasked with assessing the root cause for the failure, which can lead to a claim or litigation against a potentially responsible third party. In the age of the Internet of Things (IoT) will experts who have knowledge, skill and training sufficient to address potential root cause failures with a “dumb” version of a product have the requisite expertise to address the root cause failure with a “smart” version of the product − and withstand the challenge to their qualifications and methodology in court? The courts are beginning to grapple with this.
In American Strategic Insurance Corp. v. Scope Services, Inc. (D. Md. September 15, 2017), the plaintiff’s expert witness was precluded from offering testimony on the standard of care for the installation of a “smart meter” that was the focus of the plaintiff’s subrogation action for property damage. The complaint alleged that the defendant’s employee was professionally negligent with the installation and was the direct cause of the fire due to high-resistance contact between the new smart meter and the meter base.
At the close of discovery, the defendant challenged the qualifications of the plaintiff’s expert witness with respect to the standard of care for the installation of a smart meter. The defendant argued that the expert did not have specific experience installing electric “smart” meters. In addition, the defendant claimed the plaintiff’s expert lacked sufficient knowledge of the industry standard of care. The defendant contended that the expert’s general experience in this field was not sufficient to meet the requirements of Rule 702 of the Federal Rules of Evidence.
In reviewing the expert’s qualifications, the court found the plaintiff’s expert didqualify to testify as an expert in the field of electric meter installation. However, it also determined that despite his qualifications, the plaintiff’s expert had to clear an additional hurdle as to the methodology that he used to form his opinions, in order to show that his opinions met the standard for admissibility. The plaintiff’s expert had offered a six-step procedure for the preparation and proper installation of the smart meter. The first three steps dealt with preparation for the installation and the last three dealt with the actual installation. During the plaintiff’s expert’s deposition, he could not identify the factual basis for the six steps he offered as being an accepted industry standard. In fact, he disavowed any knowledge of the industry having used his six-step procedure.
A footnote in the decision reveals that during oral argument, the plaintiff’s counsel attempted to claim there was no standard of care as to the installation of smart meters. This obviously contradicted the plaintiff’s expert’s previous deposition testimony and was recognized by the court.
The court found the plaintiff’s expert’s opinions amounted to “little more than his personal views on the proper method of smart meter installation.” The court noted that the plaintiff’s expert’s proposed “six-step standard of care” lacked foundation because it could not be tied to any government regulation, industry standard or common practice. The court also noted the expert’s opinion was connected to existing data only by the ipse dixit (an assertion made but not proved) of the expert.
The court concluded: “Without reliably supported standard-of-care opinion testimony, the fact finder cannot answer whether the defendant’s actions fall below standards commonly held by those in the profession. Unfortunately, [the expert’s] testimony at best amounts to his personnel views on what the industry standard of care should be.”
In the 1975 blockbuster movie Jaws, Sheriff Brody, played by actor Roy Scheider, after sighting the great white shark for the first time was so gobsmacked by the enormous size of their prey, he uttered one of the more memorable lines in Hollywood history to Quint, the hired shark hunter – “You’re gonna need a bigger boat.” So it will be that smart products connected to the internet, where standards may or may not exist for them, pose a new challenge for experts who may have the requisite skills to offer opinions on the dumb version of a product but lack the new skill sets to avoid exclusion when offering opinions on the smart version … or will new experts need to step forward to complement and supplement traditional experts?