Discrepancies Between Evidence and Traumatic Brain Injury Expert’s Report Affects Weight, Not Admissibility

    Court: United States District Court for the Western District of Texas, El Paso Division
    Jurisdiction: Federal
    Case Name: Maes v. Lowe’s Home Ctrs. LLC
    Citation: 2018 U.S. Dist. LEXIS 127513

    In this premises liability case, a rack of rakes fell onto the plaintiff, injuring him. To assess the extent of injuries, the defendant’s traumatic brain injury expert witness performs a test to replicate the incident. The plaintiff, however, points out the expert’s test used only one fallen rake. In reality, several rakes fell on the plaintiff.

    The court explains the expert’s 20+ years of experience make him qualified, despite the inaccurate rake count. As such, the court finds this discrepancy in his report should only impact weight, not admissibility.


    The plaintiff was shopping at the defendant-owned premises when a rack of rakes fell and hit him. He sustained injuries to his head and body. As a result, the plaintiff filed a lawsuit against the defendant. The lawsuit made claims concerning general negligence and premises liability. The defendant retained a traumatic brain injury expert witness. The plaintiff challenged the expert’s deposition testimony.

    The Defendant’s Traumatic Brain Injury Expert Witness

    The defendant’s traumatic brain injury expert witness had worked as a biomechanical engineer for over 20 years. His research focused on the effects of personal injuries involving falling objects. In his work, the expert routinely performed human injury effect studies. These examined situations involving collisions or falling objects, including conducting individual motion tests to assess the cause/potential of damage. The expert used both physical and computer simulations to replicate such incidents and to calculate the extent of load and injuries. For this case, the expert carried out tests involving a rake and a shelf comparable to those involved in the incident. This test became the basis of his expert report.

    The plaintiff claimed that the expert evidence was inadmissible. First, the plaintiff claimed he was unqualified because he had never testified in a case where a victim’s traumatic brain injury was due to a falling object. Further, the plaintiff asserted his findings were based on an inaccurate model of the incident in question.

    The defendant replied that their expert’s experience in engineering biodynamics qualified him to opine on health requirements and premises liability risks. Further, the defendant asserted their expert’s testimony was credible, based on adequate evidence or details, and based on sound standards and practices. The defendant also claimed the plaintiff’s argument that their expert conducted a test with the wrong number of rakes was baseless. They asserted the plaintiff had given a shifting account of the number of rakes that had fallen.


    The court found that the expert was qualified to testify on the possibility of traumatic brain damage arising from the accident. Further, the court noted the expert routinely commented on the impact analysis of accidents from falling objects. It explained this area was ancillary to his experience in biomechanical engineering. Also, the court pointed out that the plaintiff had sued for personal injuries and the expert testified about how likely the falling rakes caused the injuries. Thus, the court deemed that the given evidence was relevant.

    The court acknowledged there was evidence that several fallen rakes injured the plaintiff. It also acknowledged the expert’s report was based on injuries sustained by a single rake hitting a person in the head. Though the expert’s report was not founded on established facts, the court found that these concerns affected the weight of the expert’s testimony, not its admissibility. Such discrepancies did little to change the court’s finding that the expert’s opinions were reliable per Daubert.


    The court denied the plaintiff’s motion to exclude the defendant’s traumatic brain injury expert’s testimony.

    Key Takeaways for Experts

    Despite some logistical inaccuracies in the expert’s report testing, the court finds that the expert’s extensive experience makes his testimony admissible. Though experts should strive for precision in their research and testing, it is notable that the court valued this expert’s robust knowledge over a small reconstruction inaccuracy.