Saturday, January 20, 2007

Test Case

Now and then, a case comes along with a fact pattern that can serve as a kind of Rohrschach test, in diagnosing people's attitudes about litigation. The Sixth Circuit's decision this past Thursday, in Surles v. Greyhound Lines, Inc., No. 05-6713 (6th Cir. Jan. 18, 2007), may be such a case.

Some of the facts: A mentally unstable passenger attacks a Greyhound bus driver, causing the bus to crash. Another, innocent passenger suffers injuries to her spinal cord in the crash, rendering her a paraplegic. She sues the bus company, alleging it was negligent in failing to install an entry-resistant barrier next to the driver's seat in the bus. The trial court admits her expert testimony in support of that theory, and a jury awards $8 million in compensatory damages.

Should the claim even be actionable? Should the experts' testimony have been admitted? Should the Sixth Circuit have upheld the verdict? The facts just recited, we suspect, will be enough for many people to form tentative opinions on these subjects -- opinions that may be slow to change in response to additional information.

Here, nevertheless, are some additional facts. A single Greyhound bus can carry 50 passengers or more. Over a four-year period, from October 1997 to October 2001, Greyhound's records reflect 42 incidents involving either passenger interference with the bus driver or a passenger's attempt to take control of the bus's steering wheel or brakes. Five of those incidents resulted in accidents. One of the plaintiff's experts had experience, in the early 1990's, designing entry-resistant barriers to protect bus drivers from passenger attacks, for the Seattle transit system.


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.