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Army Exercise Appeal Probes User Error Note

(CN) - Improper witness testimony tainted the trial over an allegedly defective mortar cartridge that killed and injured soldiers, a lawyer told the 9th Circuit.

Stephanie Rodriguez became a widow on March 10, 2006, when an 81mm mortar cartridge exploded prematurely in an Army training exercise in Hawaii. The blast killed Staff Sgt. Oscar Rodriguez and injured Samuel Oyola-Perez, Julius Riggins and Wilfredo Dayandante.

In 2010, a federal jury sided with General Dynamics, the Virginia-based manufacturer of the cartridge, against the ensuing product liability claims.

Hoping to revive the suit, attorney Ward Brown said that the trial had improperly allowed admitted testimony from investigator Philip Leong.

Though Leong is a "lay opinion witness" under Federal Rule 701, he spoke about technical and scientific matters related to the alleged cause of the explosion, Brown said. Such specialized, scientific and technical testimony must come only from experts admitted under Federal Rule 702, he argued.

Leong testified that the mortar cartridge may have gone off during the live-fire exercise because it was double-loaded by the soldiers.

At the special sitting in Honolulu last week, Judge Susan Graber asked why the alleged witness-rule error mattered. Several other defense experts who had been properly admitted would have testified similarly, she said.

Referring to the repeated objections he had made at trial to Leong's testimony, the Withers, Brant, Igoe & Mullennix attorney replied, "I had to stand up the whole time."

"That puts somebody in a very difficult position," he added.

"The fact that another witness might have come in and supported this - somebody that we were fully ready to cross-examine, somebody that had all the vetting done - that is completely different than what happened here, and I would take my chances with that."

Disclosure rules are meant to prevent this kind of "trial by ambush," Brown said.

Arguing for General Dynamics, attorney Peder Batalden said that the error, if one even occurred, was harmless.

"If Leong had not been permitted to testify, General Dynamics would have called its own retained expert, and the jury would have heard much the same story, so there's no reason to believe that any error was prejudicial," he said.

Batalden, an attorney with Horvitz & Levy in Encino, added that the evidence against a defective mortar was overwhelming.

The shells were mass produced, and none of the other 13,000 shells in that particular lot has had a problem, he said.

"It's just not believable that a manufacturing defect would have been the cause of the error," he said.

Leong had produced a written investigative report on the incident for the Army "that is in all material respects the same thing that a retained expert would have produced in case like this," the attorney added.

Seemingly skeptical, Judge Morgan Christen asked: "If they'd really complied with [federal rules] than he would have had to disclose all the data that he relied upon, and opposing counsel tells me he didn't, do you agree?"

"I think it's fair to say not all the backup data was disclosed, but there was no impediment to the plaintiffs asking for that data," Batalden admitted.

Judge Christen added, "except that they didn't know they had to because this was going to be a fact witness not an expert witness, right? He wasn't going to be allowed presumably to go into this very technical area."

Batalden then attempted to explain his view on the subtle differences between an expert witness and a lay witness using the example of business owner.

"The business owner who gets on the stand and is informed by his background and technical expertise in financial and accounting issues is nonetheless allowed to testify as a lay witness," he said.

Judge Jay Bybee interrupted to note that, "in that case, the business owner is the owner of the business as opposed to the owner of some other business who is being brought in to say, gee, this is how I view this business, right?"

Batalden said this was "just like Leong personally investigated this accident."

But Bybee said, "it wasn't that he just happened to be vacationing in Hawaii and took a look at the accident because he happened to be an ordinance expert."

Batalden then clarified that the key difference is that "the investigation was not conducted in anticipation of litigation."

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