This is a tricky one. In Hirchak v. W.W. Grainger, Inc., https://ecf.ca8.uscourts.gov/opndir/20/11/192642P.pdf (8th Cir. 11/17/2020), the plaintiff was injured at work when a web sling broke and dropped a load of steel tubing on him. The plaintiff couldn’t sue the manufacturer, Juli Sling Co. Ltd., because it’s a Chinese company, not subject to the jurisdiction of American courts. So he sued W.W. Grainger, Inc. (“Grainger”), which had allegedly sold the Juli sling to the plaintiff’s employer, Weiler, Inc. (“Weiler”).
I say “allegedly” because Grainger moved for summary judgment on the ground that it had not, in fact, sold the sling to Weiler. Without going into detail, suffice to say that Grainger submitted an affidavit from a fact witness and other evidence in the record in support of its motion. In opposition, the plaintiff
submitted an expert report that concluded that the subject sling was a Grainger-distributed Juli sling. The [plaintiff’s] expert based this opinion on similarities that he identified between the subject sling and two known Grainger-distributed Juli slings, one purchased new and the other furnished by Weiler….No Weiler employee was identified who could testify as to how the subject sling came into Weiler’s possession. Nor does the record indicate how the known Grainger-distributed Juli sling that Weiler furnished to the Hirchaks’ expert came into Weiler’s possession. [Emphasis added.]
….The district court reasoned that the Hirchaks’ expert’s analysis provided a factual basis for, at most, the premise that the subject sling was a Juli sling. It does not follow, the district court pointed out, that the subject sling was a Grainger-distributed Juli sling; the subject sling could well have been a Juli sling distributed by one of Grainger’s competitors. Second, the district court held that, without their expert’s report, the Hirchaks had failed to present sufficient evidence that Defendants supplied the subject sling to Weiler in order to resist summary judgment.
On appeal, the Eighth Circuit affirmed. First, it agreed that the expert’s opinion as to the source of the sling had no adequate factual basis: “Regardless of how rare the similarities [among the three slings analyzed by the expert] are, they do not constitute a sufficient factual basis for the…expert’s opinion that the subject sling was…a Grainger-distributed Juli sling.” (Emphasis added.)
Second – and this is the tricky part, so I’m quoting in full:
Second, the [plaintiff] claims that the record fills the analytical gap in [the] expert’s reasoning by supplying a factual basis for the second premise of his opinion. According to the [plaintiff], the fact that a known Grainger-distributed Juli sling was found in Weiler’s possession after the accident warrants a presumption that other Juli slings in Weiler’s possession must also be Grainger-distributed Juli slings. This presumption implies that if the subject sling was a Juli sling, then the subject sling was a Grainger-distributed Juli sling. [Emphasis added.]
The [plaintiff’s] argument presupposes that the record can rescue an expert opinion from inadmissibility by filling its analytical gaps. But this is not the law. Courts must guard against invading the province of the jury on a question which the jury was entirely capable of answering without the benefit of expert opinion. Consequently, we must not permit an expert to proceed beyond his expertise. An expert may proceed as far as – but no further than – his specialized knowledge assists him in going. See Fed. R. Evid. 702(a) (limiting expert testimony to that which employs the expert’s “specialized knowledge” to “help the trier of fact”); Omega Flex, 783 F.3d at 723-25 (affirming the district court’s decision to admit an engineer’s opinion that propane-gas tubing was “too thin” but not his opinion that the tubing was “unreasonably dangerous”)….This rule deprives the jury of nothing helpful, and it safeguards against the risk that the jury might defer to the expert simply because of the expert’s expertise in other areas. [Emphasis added; some internal quotation marks and citations omitted.]
Here, even if the [plaintiff’s] expert’s specialized knowledge assisted him in establishing the premise that the subject sling was a Juli sling, it did not assist him in proceeding to the opinion that the subject sling was a Grainger-distributed Juli sling. For the limited purpose of determining whether the district court abused its discretion in excluding the expert’s opinion, we need not decide whether the [plaintiff is] correct that the record contains sufficient evidence to support this additional step. Even if it does, the expert was not permitted to invade the province of the jury by taking this step for it. [Footnote omitted.]
The court here comes pretty close to saying that a jury could reasonably conclude, based solely on “the fact that a known Grainger-distributed Juli sling was found in Weiler’s possession after the accident,” that “other Juli slings in Weiler’s possession must also be Grainger-distributed Juli slings.” That, combined with the expert’s opinion that the subject sling was a Juli sling (which both courts agreed had an adequate factual basis), would have been sufficient to defeat summary judgment. I am at a loss to understand why the plaintiff didn’t make that argument to the district court. If he had, he could have argued to the court of appeals that (a) the district court should have admitted the expert’s opinion that the subject sling was a Juli sling, instead of throwing out the whole report, and (b) the district court should have recognized that whether Grainger was the supplier of the sling was an issue for the jury, based on the reasoning quoted at the beginning of this paragraph. In a footnote to the last paragraph of its opinion, the Eighth Circuit notes that the plaintiff failed to argue those issues on appeal and therefore waived them.
