Colorado’s is a lot of things. A skier with a Level I Alpine certification. An alumnus of the Alpine Ski Patrol. An expert qualified in the areas of ski safety and accident reconstruction. However, in , No. 10-cv-00309, 2011 WL 5331583 (D. Col. Nov. 7, 2011), a Colorado federal court held that he wasn’t qualified to testify as to the design, manufacture, or risk associated with bi-ski adaptive skiing equipment. Preposterous, you say? How can a man with 38-years of experience as a ski patrol officer not qualify him as an expert you ask? Certainly, the court must be in error.
In Squires, the case arose out of a 2008 ski accident at the Breckenridge Ski Resort in Colorado. The plaintiff, a 17-year old girl with cerebral palsy and legal blindness, was injured when her ski instructor lost control of the tethers connected to a manufactured by Mountain Man, Inc. After the instructor lost control of the tethers, the plaintiff continued down a ski slope in the bi-ski until it collided with a tree. The plaintiff filed suit against the instructor and the Breckenridge Outdoor Eduction Center. Thereafter, she amended her complaint, adding claims for strict products liability, breach of implied warranty of fitness, common law negligence, and breach of express warranty against Mountain Man. The plaintiff retained Gale as an expert to testify regarding the inherent danger presented with the design of the bi-ski.
Mountain Man moved to strike the opinions of Gale on the grounds that they failed to satisfy the requirements of Rule 702 of the Federal Rules of Evidence or the standards outlined in Daubert. According to the plaintiff, Gale was qualified to testify about the alleged deficiencies in the bi-ski because he has “extensive knowledge and experience with ski patrol equipment and mountain terrain safety.” Further, the plaintiff argued Gale’s opinions were based on “sound principles.” However, these “sound principles” were never articulated.
The Court conceded that Gale may be qualified to testify as an expert in certain fields – but not in the areas of product design, manufacture, and product warnings. Gale has never been employed by a ski equipment manufacturer and has no formal training in the field. While experts are granted wide latitude to offer opinions, the Court indicated that these opinions must have some reliable basis. Despite the apparent lack of ski product design experience, Gale opined that the bi-ski was “inherently unsafe and not designed for powerful forces” because “all of the plastic buckles on the bi-ski seat broke.” Gale identified no formal methodology as a basis for his opinions.
Gale’s opinions did not cease with his “broken buckle” logic. He also proposed an alternative design for the bi-ski involving “some sort of braking device which could be controlled by the person strapped to the bi-ski.” While Gale’s hypothesis sounds intriguing, he offered no specifications for the design, demonstrations of its feasibility, or explanations of how it would be employed by a person with physical impairments. The Court described his opinions on the alternative design as a “subjective belief that unknown individuals with actual qualifications could ‘come up with something.'” Apparently, these opinions are not the reliability envisioned by Rule 702.
Knowing the significance of expert testimony in products litigation, we must question the plaintiff’s choice of Gale. Sure, he is an experienced ski instructor, but couldn’t the plaintiff find someone more linked-in to ski design and manufacture? Maybe the plaintiff prepped for the Daubert hearing by reviewing the qualification of () in . If Vito is qualified to testify in general automotive knowledge because she comes from a family of mechanics, Gale’s skiing experience should qualify him to talk about the design and manufacture of skis right? After all, with 38 years of experience on the slopes, Gale has seen a lot of skis. Unfortunately for the plaintiff, the Court was not as impressed as Jim Trotter () and Judge Chamberlain Haller (.
Fortunately for Mountain Man, the Court got this one right. Gale was not qualified as an expert in product design and the Court granted Mountain Man’s motion for summary judgment as a result. As for Gale, well he won’t be able to add “ski equipment expert” to his . Maybe he can spend his time away from the trial, designing that braking device.