Expert testimony dismissed in man's accidental death from bow and arrow

By Charmaine Little | Nov 12, 2018


U.S. Fifth Circuit Court of Appeals Judge Priscilla Richman Owen   ICS Media Database

On October 24, the U.S. Court of Appeals for the Fifth District affirmed a lower court’s ruling that barred an expert witness’ testimony from an accidental death involving a bow and arrow.

In barring the witness’ testimony, the appeals court also agreed that the plaintiffs -- Mary, Amanda and Ryan Sandifer -- didn’t provide enough evidence to prove the deceased, Dr. Alan Sandifer, was using the product properly when it pierced him in the head. Thus, the appeals court also backed the lower court’s grant for summary judgment for the creator of the 2007 Hoyt Vulcan XT500 bow product, Hoyt Archery Inc., as well as insurance companies National Union Fire Insurance Co. of Pittsburgh and St. Paul Fire & Marine Insurance Co.

In their appeal, the Sandifers said the lower court should not have excluded the expert testimony “as beyond the scope of the Sandifers’ original biomechanical expert; and moreover, excluding this testimony constituted an improper discovery sanction.” The Sandifers also said the trial court shouldn’t have excluded the expert’s testimony regarding Dr. Sandifer’s safety practices as a bowhunter. The appeals court said the only issue that needed evaluating was if the lower court properly excluded Dr. Rajeev Kelkar’s testimony concerning Dr. Sandifer’s use of the product. “Without such testimony, the Sandifers cannot prevail.”

The appeals court stated that while Dr. Sandifer was a skilled bowhunter, he wasn’t hunting when the accident occurred. Instead, he was in his home office. The appeals court said the lower court was correct when it determined “an analysis drawn from these propensity statements was not helpful to the specific issues before the jury.” The appeals court noted Kelkar depended on the propensity evidence to come to the causation conclusion in his deposition. Without this, Kelkar’s expert testimony would benefit both sides.

The day before his death, Dr. Sandifer sat with his bow while he told his wife he was looking for a new part on the computer. His wife was in the other room when she heard a loud noise and then discovered her husband lying unconscious with the bow’s metal cable guard through his left temple. Since no one witnessed the accident, Hoyt speculated Dr. Sandifer put his head in the bow to evaluate it, pulled the drawstring, and lost control, causing the accident. The Sandifers however, say the bow was defective. Their expert, Kelkar, backed their claim and pointed out Dr. Sandifer was a skilled bowhunter and that it was very unlikely for him to use the product inaccurately. In deposition, Kelkar said it was just as likely for Dr. Sandifer’s accident to be contributed to him using the product inaccurately.

Chief Judge Carl Stewart authored the opinion while Judges Grady Jolly and Priscilla Owen concurred.

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