Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) 15 Daubert’s Non-Exclusive Screening Factor: Testing Experts employing flawed testing should be excluded. See, e.g. Bogosian v. Mercedes-Benz of No. America, Inc., 104 F.3d 472 (1 st Cir. 1997)(expert’s test evidence flawed for various reasons, including no attempt to replicate known facts of accident, test conditions different from what evidence showed and expert’s test approach assumed facts contradicted by testimony of plaintiff he supported); DePaepe v. General Motors Corp., 141 F.3d 715 (7 th Cir. 1998)(shortcomings in expert’s test evidence assigned to trial judge after retrial required for other reasons); Samuel v. Ford Motor Co., 96 F.Supp. 2d 491 (D. Md. 2000)(rollover avoidance maneuver test program by claimant’s expert flawed and unreliable as it could not produce the same or similar results when run under the same conditions, the inputs exceeded angles and rates of steering reasonably to be expected from nonprofessional drivers performing emergency avoidance maneuvers, and it was “born in litigation.”)
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) 16 Daubert’s Non-Exclusive Screening Factor: Peer Review and Publication Expert testimony not subject to peer review and publication should be excluded. See, e.g. Cabrera v. Gordis Corp ., 945 F.Supp. 209 (D. Nev. 1996)(expert's opinion based on use of a blood test, the reliability of which had not been reviewed by peers, was rejected by the court); Black v. Food Lion, Inc ., 171 F.3d 308 (5 th Cir. 1999)(expert's theory, which had not been verified by testing or subjected to peer review, should not have been admitted); Demaree v. Toyota Motor Corp., 37 F. Supp. 2d 959 (W.D. Ky. 1999)(expert did not publish any paper on his theory or give any presentation to scientific, engineering or safety groups. Theory had not been subjected to peer review and was therefore inadmissible); Lauzon v. Senco Products, Inc ., 123 F.Supp. 2d 510 (D. Minn. 2000)(articles presented by plaintiff's expert that discussed the product in general are not the type of peer-reviewed literature contemplated by Daubert ); Wheat v. Pfizer, Inc ., 31 F.3d 340 (5 th Cir. 1994)(expert’s theory regarding causation lacked an empirical foundation and had not been subjected to peer review); Mannix v. Chrysler Corp ., 2001 U.S. Dist. LEXIS 4641 (E.D.N.Y. 2001)(expert testimony rejected where expert had not published any technical articles).
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) 17 Daubert’s Non-Exclusive Screening Factor: Rate of Error Expert methodology with unknown or unknowable rate of error should be excluded. See, e.g., Brown v. Southeastern Pennsylvania Transportation Authority, 35 F.3d 717 (3d Cir. 1994 )(expert’s recalculation of exposure to PCBs rejected where methodology used was likely to lead to erroneous results); Samuel v. Ford Motor Co ., 96 F.Supp. 2d 491 (D. Md. 2000)(videotape of testing offered to prove vehicle's propensity to roll over excluded where input from drivers could "dramatically influence the outcome of the test." The test was unreliable in that it was not expected to produce the same or substantially similar results when run under the same conditions).
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) 18 Daubert’s Non-Exclusive Screening Factor: General Acceptance General acceptance in the relevant scientific community is still a consideration. See, e.g., Hamilton v. Emerson Electric Co ., 133 F. Supp. 2d 360 (M.D. Pa. 2001)(expert testimony rejected where expert failed to offer any evidence that his methodology was generally accepted or that it featured any standards that controlled its operation); Elcock v. Kmart Corp ., 233 F.3d 734 (3d Cir. 2000)(expert testimony inadmissible for failing to establish that his methodology was generally accepted or that it related to methods that had been established as reliable); Oddi v. Ford Motor Co ., 234 F.3d 136 (3d Cir. 2000)(expert testimony properly excluded because expert conducted no tests, there was nothing to submit to peer review, and it was impossible to ascertain a rate of error for the expert's assumptions, so “no standards control his analysis, and no ‘gatekeeper’ can assess the relationship of [the expert's] method to other methods known to be reliable and non- judicial uses to which it has been put”); Lennon v. Norfolk & Western Railway Co ., 123 F.Supp. 2d 1143 (N.D. Inc. 2000)(rejection of expert testimony which asserted a causal link between trauma and the onset or exacerbation of multiple sclerosis, contrary to the overwhelming weight of medical authority); Brown v. Southeastern Pennsylvania Transportation Authority , 35 F.3d 717 (3d Cir. 1994)(animal studies should have been admitted as some evidence of causation because they are generally accepted as reliable in the scientific community).
General Electric Co. v. Joiner, 522 U.S. 136 (1997) 19 Standard of Review Exercise of discretion by a federal trial court when performing its Daubert gatekeeping function is subject to review by federal courts pursuant to an abuse of discretion standard.
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) 20 Expands and Strengthens Daubert Federal trial courts’ gatekeeping function applies not only to scientific expertise, but also to technical and other specialized knowledge. Daubert screening factors can be used to evaluate the reliability of nonscientific expert proof, including experience-based testimony. For example, the court can ask how often an expert’s experience -based methodology has produced erroneous results, or whether that method is generally accepted in the relevant engineering community. The point of Daubert gatekeeping is not only to ensure relevance and reliability, but “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that categorizes the practice of an expert in the relevant field.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) 21 Expands and Strengthens Daubert Gatekeeping means tuning into signals of unreliability and probing why they are unsettling. For example, the court found flaws in the reasonableness of the expert’s method, not in general, but as applied to the matter at hand (i.e., the cause of this tire’s separation ). The tenuousness of his testimony about key factors, such as the miles traveled by the tire, the subjectiveness of his method of analysis and his inspection of the tire for the first time on the morning of his deposition, were suspicious. The broad discretion given to trial judges does not mean “discretion to abandon the gatekeeping function … [nor] to perform the function inadequately.” Rather, it is the discretion “to choose among reasonable means of excluding expertise that is fausse and science that is junky.” Kumho concurring opinion by J. Scalia Though the Daubert screening factors are not holy writ, in a particular case the failure to apply one or another of them may be unreasonable, and hence an abuse of discretion.” Id.
Weisgram v. Marley Co., 528 U.S. 440 (2000) 22 Appropriate Relief If the trial court has allowed an expert to testify but the appellate court determines the expert should have been Daubertized, and if the proffering party’s proofs are thereby rendered inadequate as a matter of law, the appellate court can order entry of judgment. “Since Daubert … parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet. It is implausible to suggest, post- Daubert , that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail.”
STANDARDS IN STATES WHERE DAUBERT DOES NOT CONTROL
Beyond Daubert 24 Approaches Aside From Daubert 18 jurisdictions* do not adhere to Daubert. Some are Frye jurisdictions Some consider one or more of Daubert’s Big 4 screening factors, but emphasize the court’s broad discretion in how it determines reliability of expert evidence. That is where it is helpful to consider the factors in this section. If you are in a jurisdiction that strictly adheres to Daubert , consider the following factors while performing a Daubert analysis. Remember, the Big 4 factors are non-exclusive . * AL, CA, CO, DC, HI, IL, KS, MD, MN, MO, NC, NV, NY, ND, PA, SC, VA and WA
Beyond Daubert 25 Representative Approaches of Non- Daubert Jurisdictions Colorodo CRE 702 governs the trial court’s determination as to whether scientific or other expert testimony is admissible. “Such an inquiry should focus on the reliability and relevance of the proffered evidence and requires a determination as to (1) the reliability of the scientific principles, (2) the qualifications of the witness, and (3) the usefulness of the testimony to the jury.” People v. Shreck, 22 P.3d 68 (Colo. 2001) “We also hold that when a trial court applies CRE 702 to determine the reliability of scientific evidence, its inquiry should be broad in nature and consider the totality of circumstances of each specific case. In doing so, a trial court may consider a wide range of factors pertinent to the case at bar. The factors mentioned in [ Daubert ] and by other courts may not be pertinent, and thus are not necessary to every CRE 702 inquiry.” Id.
Beyond Daubert 26 Representative Approaches of Non- Daubert Jurisdictions North Dakota “This Court has a formal process for adopting procedural rules after appropriate study and recommendation by the Joint Procedure Committee, and we decline Hernandez's invitation to adopt Daubert by judicial decision. ” State v. Hernandez , 707 N.W.2d 449 (N.D. 2005) Under North Dakota law, the admission of expert testimony is governed by N.D.R.Ev. 702, which provides : “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.” Id.
Beyond Daubert 27 Representative Approaches of Non- Daubert Jurisdictions Washington The trial court must exclude expert testimony involving scientific evidence unless the testimony satisfies both Frye and E.R. 702. State v. Copeland , 130 Wn.2d 244, 922 P.2d 1304 (1996). To admit evidence under Frye , the trial court must find that the underlying scientific theory and the “’techniques , experiments, or studies utilizing that theory’” are generally accepted in the relevant scientific community and capable of producing reliable results. Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 260 P.3d 857 (2011)(quoting State v. Riker, 123 Wn.2d 351, 869 P.2d 43 (1991)). To admit expert testimony under E.R. 702, the trial court must determine that the witness qualifies as an expert and the testimony will assist the trier of fact. State v. Cauthron , 120 Wn.2d 879, 846 P.2d 502 (1993). Unreliable testimony does not assist the trier of fact. See, Anderson. Frye and E.R. 702 work together to regulate expert testimony: Frye excludes testimony based on novel scientific methodology until a scientific consensus decides the methodology is reliable; E.R. 702 excludes testimony where the expert fails to adhere to that reliable methodology.” Lakey v. Puget Sound Energy, Inc. , 176 Wn.2d 909 (Wash. 2013)
Beyond Daubert 28 Representative Approaches of Non- Daubert Jurisdictions New York When novel scientific evidence is involved, Frye applies, requiring that the expert’s opinions or methodology be generally accepted as reliable by the relevant scientific community. People v. Wesley, 83 N.Y.2d 417 (1994) Frye does not seem to apply to nonscientific or experience-based testimony. New York does not have a written code of evidence to guide the courts on how to judge the reliability of nonscientific or experience-based expert evidence.
Factors Beyond Daubert’s Big 4 29 What screening factors are considered by the courts as they go beyond Daubert’s Big 4 factors of testing, peer review, rate of error, general acceptance?
Factors Beyond Daubert’s Big 4 30 Beyond Daubert: Unsupported Speculation The courts are particularly watchful for speculative expert testimony. See, e.g., Oddi v. Ford Motor Co. , 234 F.3d 136 (3d Cir. 2000)(expert excluded for failing to test his hypothesis or even attempt to calculate the force inflicted on the truck by the guardrail. “Although there may be some circumstances where one's training and experience will provide an adequate foundation to admit an opinion and furnish the necessary reliability to allow a jury to consider it, this is not such a case"); Schmaltz v. Norfolk & Western Railway Co ., 878 F.Supp. 1119 (N.D. Ill. 1995)(excluded testimony of expert who knew of no documented cases to support his hypothesis, and believed there was evidence to suggest causation but conceded it was "not terribly strong"); Moore v. Ashland Chemical, Inc ., 151 F.3d 269 (5 th Cir. 1998) (medical opinion regarding causation is excluded absent some "objective, independent validation of the expert's methodology." Proponent of expert testimony need not prove that expert's testimony is correct but must prove that the testimony is reliable ); (continued)
Factor’s Beyond Daubert’s Big 4 31 Beyond Daubert: Unsupported Speculation (continued) Turner v. Iowa Fire Equipment Co ., 229 F.3d 1202 (8 th Cir. 2000)(expert more concerned with identifying and treating plaintiff's condition than identifying the cause); Donnelly v. Ford Motor Co ., 80 F.Supp.2d 45 (E.D.N.Y. 1999)(fuel ignition expert precluded from testifying because of inability to explain methodology and ipse dixit nature of the opinion); McMahon v. Bunn-O-Matic , 150 F.3d 651 (7 th Cir. 1998)(“an expert who supplies nothing but a bottom line supplies nothing of value to the judicial process”).
Factors Beyond Daubert’s Big 4 32 Beyond Daubert : Subjective Belief Consider how much of expert opinion is based upon the expert’s subjective interpretation of the data. See, e.g., Pries v. Honda Motor Co ., 31 F.3d 543 (7 th Cir. 1994)(expert testimony regarding forces that would have caused seat belt to open excluded in light of testimony that "he did not know" if these forces were commonly achieved in a crash); Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000)(because the expert “conducted no tests and failed to attempt to calculate any of the forces on Oddi or the truck during this accident, he used little, if any, methodology beyond his own intuition”); Brooks v. Outboard Marine Corp ., 234 F.3d 89 (2d Cir. 2000)(expert opinion rejected where expert had not seen the subject boat or motor in person or in photographs, never spoke to the boys involved in the accident, was unaware of the dimensions of the boat and the placement of the seats in relation to the motor, did not know where the boys were positioned and never attempted to reconstruct the accident and test his theory); Rosen v. Ciba-Geigy Corp ., 78 F.3d 316 (7 th Cir. 1996)(although expert cardiologist expressed what may have been an "insightful, even an inspired, hunch concerning the cause of the heart attack," it lacked "scientific rigor." Expert failed to offer a reason to believe that wearing a nicotine patch for three days could precipitate a heart attack or any experimental, statistical or scientific data from which such determination could be made).
Factor’s Beyond Daubert’s Big 4 33 Beyond Daubert : Cumulative Testimony The exclusion of expert testimony on the ground it is cumulative prevents delay of the trial and overwhelming the jury. See, e.g., Falise v. American Tobacco Co ., 107 F.Supp.2d 200 (E.D.N.Y. 2000)(expert testimony regarding financial impact of defendant's conduct precluded as unnecessary, where the relied-upon documents can be used in arguments by counsel); Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris, Inc ., 2000 U.S. Dist. LEXIS 19587 (E.D.N.Y. 2000)(expert testimony that will be covered by another expert is excluded as cumulative); Roback v. V.I.P. Transport, Inc ., 1994 U.S. Dist. LEXIS 14054 (N.D. Ill. 1994)(proposed opinion by human factors expert that driver was confronted with significant distraction is excluded. The issue is not beyond the ken of an average person. Court considered that the expert "was hired to be nothing more than a pleasant looking, white-haired, hired advocate whose purpose is to confuse the issues"); Persinger v. Norfolk & Western Railway Co ., 920 F.2d 1185 (4 th Cir. 1990)(human factors expert did no more than state the obvious, i.e. that it is more difficult to lift an object from a seated position); Christopher v. Madison Hotel Corp ., 875 F.2d 314 (4 th Cir. 1989)(expert precluded from explaining friction tests on bathroom floor because "it is common knowledge that shiny bathroom floors are slippery"); United States v. Affleck , 776 F.2d 1451 (10 th Cir. 1985)(“memory expert” properly excluded because “the average person is able to understand that people forget”).
Factors Beyond Daubert’s Big 4 34 Beyond Daubert : Unfair Prejudice or Confusion Even reliable evidence can be precluded if confusion or prejudice outweighs probative value. See, e.g., Brown v. Southeastern Pennsylvania Transportation Authority , 35 F.3d 717 (3d Cir. 1994)(reliance on animal studies is no more prejudicial than reliance on other scientific studies, so animal study should have been admitted); Samuel v. Ford Motor Co ., 96 F.Supp. 2d 491 (D. Md. 2000)(videotape of test runs showing vehicle's propensity to tip over excluded as unreliable because "[t]he image of the test vehicles tipping dramatically . . prevented from rolling over only by the presence of the outriggers, would leave an indelible image in the minds of the jury which no limiting instruction could offset").
Factors Beyond Daubert’s Big 4 35 Beyond Daubert : Hearsay Data Consider the hearsay data being relied upon by the expert. For example, a Ph.D. pharmacologist is precluded from testifying as to whether a sleep aid medication caused a drastic change in plaintiff’s behavior because her analysis was premised on hearsay anecdotal case reports and Spontaneous Reporting Systems, i.e. data submitted to the FDA by consumers, which has not been verified as to cause and effect. Haggerty v. Upjohn Co., 950 F. Supp. 1160 (S.D. Fla. 1996), aff’d without op., 158 F.3d 588 (11 th Cir. 1998).
Factors Beyond Daubert’s Big 4 36 Beyond Daubert : Absence of Scientific Foundation in Literature Failure to offer supporting studies or literature is a basis for exclusion. See, e.g., Allen v. Pennsylvania Engineering Corp ., 102 F.3d 194 (5 th Cir. 1996)(expert precluded from testifying as to link between exposure to chemical and cancer, given absence of epidemiological study showing a statistically significant link, and because animal studies were inconclusive); Black v. Food Lion, Inc ., 171 F.3d 308 (5 th Cir. 1999)(theory of causation rejected as untested not borne out by epidemiological studies. Expert concedes medical science does not know “if the cause of the condition is muscle, nerve, or hormone damage”); Demaree v. Toyota Motor Corp ., 37 F.Supp. 2d 959 (W.D. Ky. 1999)(testimony rejected for lack of literature, published or unpublished, to advocate an air bag threshold deployment of 20 to 25 mph); Gross v. King David Bistro, Inc ., 83 F.Supp. 2d 597 (D. Md. 2000)(claim that fibromyalgia was caused by tainted tuna, based on temporal relationship between illness and tuna consumption rejected because medical literature acknowledged that causes of fibromyalgia are unknown); Lennon v. Norfolk & Western Railway Co ., 123 F.Supp. 2d 1143 (N.D. Ind. 2000)(testimony excluded where it ran counter to scientific studies conducted in the field); Siharath v. Sandoz Pharmaceuticals Corp ., 131 F.Supp. 2d 1347 (N.D. Ga. 2001)(epidemiological studies failed to show a statistically significant association between defendant's product and plaintiff's stroke; case reports are no substitute for scientific studies); Erickson v. Baxter Healthcare, Inc ., 131 F.Supp. 2d 995 (N.D. Ill. 2001)(general reference to multiple identified sources, without page citations, is insufficient foundation for expert testimony).
Factors Beyond Daubert’s Big 4 37 Beyond Daubert : Absence of Foundation in Fact Failure to offer a reliable foundation in fact is a frequent basis for exclusion. See, e.g., Bogosian v. Mercedes-Benz of North America, Inc , 104 F.3d 472 (1 st Cir. 1997)(expert testimony was without foundation where opinion was premised on assumption that gear lever was not in proper position. Moreover, expert inspected vehicle more than 18 months after the accident and failed to verify that the vehicle was in the same condition as at the time of the accident); Jaurequi v. Carter Manufacturing Co ., 173 F.3d 1076 (8 th Cir. 1999)(expert testimony regarding warnings rejected because expert did not read the warnings actually provided by the manufacturer and was unaware of their content, he did not know what kind of warning was given to the plaintiff by his coworkers; he did not evaluate the plaintiff's behavior; and he did not know the realm of plaintiff’s knowledge); Clark v. Takata Corp ., 192 F.3d 750 (7 th Cir. 1999)(expert testimony regarding failure of seat belt rejected because he assumed that the belt, though previously secure, became unlatched during the accident); Falise v. American Tobacco Co ., 107 F.Supp. 2d 200 (E.D.N.Y. 2000)(testimony regarding future rate of illness precluded for lack of a sufficiently secure base from which to extrapolate the rate); Roback v. VLP Transport, Inc ., 1194 U.S. Dist. LEXIS 14054 (N.D. Ill. 1994)(expert claimed that speedometer malfunctioned due to the electric system, but could not determine precisely what malfunctioned or where in the system it was); Hamilton v. Emerson Electric Co ., 133 F. Supp.2d 360 (M.D. Pa. 2001)(rejecting expert who assumed [1] because brake did not work at times after the accident, it did not work at the time of the accident and [2] malfunction was caused by defect).
Factors Beyond Daubert’s Big 4 38 Beyond Daubert : Validity of Methodology Determine whether the expert employed a methodology widely accepted as valid. See, e.g., O'Conner v. Commonwealth Edison Co ., 13 F.3d 1090 (7 th Cir. 1994)(physician's claim that he could determine plaintiff's cataracts were radiation-induced by mere observation was contrary to methodology prescribed in literature on which expert relied, which required looking at records of exposure and other radiation-induced biological changes and ruling out other possible causes); Brown v. Southeastern Pennsylvania Transportation Authority , 35 F.3d 717 (3d Cir. 1994)(rejected medical opinion regarding causation as unsupported by appropriate diagnostic tests; court rejected the few standard diagnostic techniques offered); Schmaltz v. Norfolk & Western Railway Co ., 878 F.Supp. 1119 (N.D. Ill. 1995)(expert testimony based on “temporal congruity” between plaintiff's exposure and onset of his symptoms is insufficient); Braun v. Lorillard, Inc ., 84 F.3d 230 (7 th Cir. 1996)(excluded expert testimony where expert “really didn't have any knowledge of the methodology that should be employed, and he still doesn't have any information regarding the methodology that should be employed with respect to lung tissue.” Held that where an “expert proposes to depart from the generally accepted methodology of his field and embark on a sea of uncertainty, the court may appropriately insist that he ground his departure in demonstrable and scrupulous adherence to the scientist's creed of meticulous and objective inquiry. To forsake the accepted methods without even inquiring why they are the accepted methods-in this case why specialists in testing human tissues for asbestos fibers have never used the familiar high temperature ashing method-and without even knowing what the accepted methods are, strikes us, as it struck [the trial judge], as irresponsible.”)
Factors Beyond Daubert’s Big 4 39 Beyond Daubert : Reliability of Methodology Determine whether the methodology employed by the expert is reliable. See, e.g., Dennis v. Pertec Computer Corp ., 927 F.Supp. 156 (D.N.J. 1996)(expert excluded due to his failure to follow appropriate methodology in testing the product, including ensuring the test keyboard was representative of subject keyboards, probing repair history of the test keyboard, or removing the cover to inspect the keys); Bogosian v. Mercedes-Benz of North America, Inc., 104 F.3d 472 (1 st Cir 1997)(expert excluded because the vehicle was examined away from the accident site, the wheel was raised in the test but not at the accident site, the lever was shifted rapidly from drive to park by the expert without evidence concerning plaintiff's speed in shifting, and expert assumed the lever was in a position different from the “latched park” position plaintiff testified to); DePaepe v. General Motors Corp ., 141 F.3d 715 (7 th Cir. 1998)(expert’s testimony regarding product design is subject to challenge upon a retrial because his testing methodology was “interesting but not scientific”); Mancuso v. Consolidated Edison Co ., 2000 U.S. App. LEXIS 12487 (2d Cir. 2000)(expert excluded due to unreliable methodology used to establish causation); Roback v. V.I.P. Transport, Inc ., 1994 U.S. Dist. LEXIS 14054 (N.D. Ill. 1994)(expert's data recordation and analysis methods used a microcomputer and program he had designed but which had never undergone any meaningful peer review or scrutiny); Hamilton v. Emerson Electric Co ., 133 F.Supp2d 360 (M.D. Pa. 2001)(expert did not use “any discernible methodology to determine that the miter saw contained a defect”); Siharath v. Sandoz Pharmaceuticals Corp ., 131 F. Supp. 2d 1346 (N.D. Ga. 2001)(methodology used by doctors in the practice of medicine does not satisfy the Daubert requirement that testimony be supported by scientific methodology).
Factors Beyond Daubert’s Big 4 40 Beyond Daubert : Lack of Qualification Even if the expert is well qualified in the relevant field, examine whether such qualification extends to the opinion proffered. See, e.g., Porter v. Whitehall Laboratories, Inc ., 9 F.3d 607 (7 th Cir. 1993)(observation of five similar cases insufficient to validate medical opinion regarding causation); O'Conner v. Commonwealth Edison Co ., 13 F.3d 1090 (7 th Cir. 1994)(treating disease five times over lengthy career does not provide proper foundation for opinion); Pries v. Honda Motor Co ., 31 F.3d 543 (7 th Cir. 1994)(expert with master's degree in industrial design not qualified to testify as to injuries that would have been avoided with different design of seat belt); Braun v. Lorillard, Inc ., 84 F.3d 230 (7 th Cir. 1996 ) (“[ m]odern science is highly specialized. An expert in the detection of asbestos in building materials cannot be assumed to be an expert in the detection of asbestos in human tissues”); Cabrera v. Cordis Corp ., 945 F.Supp. 209 (D. Nev. 1996)(rejected testimony of doctor whose theories were developed in breast implant litigation, but was not an expert on design or manufacture of brain shunts); Watkins v. Telsmith, Inc. , 121 F.3d 984 (5 th Cir. 1997)(civil engineer not qualified to testify regarding alleged defective design; mechanical engineer required); Demaree v. Toyota Motor Corp ., 37 F. Supp. 2d 959 (W.D. Ky. 1999)(expert who had never published any engineering paper on automotive safety matters or air bag design was precluded); Lauzon v. Senco Products, Inc ., 123 F.Supp.2d 510 (D. Minn. 2000), rev’d , 270 F.3d 681 (8 th Cir. 2001)(qualifications questioned where “for the past 19 years, [plaintiff's expert] had derived 90% to 95% of his income from expert legal work”).
Factors Beyond Daubert’s Big 4 41 Beyond Daubert : Failure to Follow Own Methodology Where expert is found not employing the methodology admittedly appropriate for the resulting opinion. For example, expert testimony linking one-time use of Halcion to the plaintiff’s injury is rejected where the expert admitted the only way to determine causation was to conduct large-scale epidemiological studies with a defined population, yet the expert did not conduct such studies nor did she study the clinical or epidemiological studies done by others. Haggerty v. Upjohn Co., 950 F.Supp. 1160 (S.D. Fla. 1996) For another example, a differential diagnosis offered by plaintiff's expert was one traditionally used by the medical community to determine which of two or more conditions a patient is suffering from. It was admittedly not the correct methodology for determining causation. Turner v. Iowa Fire Equipment Co . , 229 F.3d 1202 (8 th Cir. 2000)
Factors Beyond Daubert’s Big 4 42 Beyond Daubert : Greater Scrutiny For Litigation Opinion Opinion prepared for the purpose of litigation is subject to extra scrutiny. As addressed in D aubert: “ [o]ne very significant factor to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for the purposes of testifying. That an expert testifies for money does not necessarily cast doubt on the reliability of his testimony, as few experts appear in court merely as an eleemosynary gesture. But in determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist's normal workplace is the lab or the field, not the courtroom or the lawyer's office. ”
Factors Beyond Daubert’s Big 4 43 Beyond Daubert : Greater Scrutiny For Litigation Opinion (continued) See, e.g., Perry v. United States , 755 F.2d 888 (11 th Cir. 1985)(expert who “as formed an opinion as to the answer he is going to find before he even begins his research may be less objective than he needs to be in order to produce reliable scientific results”); Rosen v. Ciba-Geigy Corp ., 78 F.3d 316 (7 th Cir. 1996)(excluded untested opinion by cardiologist, although the cardiologist's conjecture is worthy of careful attention, the courtroom “is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead to it”); Samuel v. Ford Motor Co ., 96 F.Supp. 2d 491 (D. Md. 2000)(rollover avoidance maneuver program was “born in litigation” and therefore was not reliable) ; Kaufman v. Motorola, Inc ., 2000 U.S. Dist. LEXIS 235 (N.D. Ill. 2000)(use of proportional trading model rejected by court as untested outside the courtroom. Scientific controversy must be settled by methods of science rather than methods of litigation).
Factors Beyond Daubert’s Big 4 44 Beyond Daubert : Failure to Rule Out Other Causes Failure to rule out other causes can be the basis to exclude expert opinion. See, e.g., Brown v. Southeastern Pennsylvania Transportation Authority, 35 F.3d 717 (3d Cir. 1994)(doctor's failure to rule out other possible causes required that opinion regarding causation be rejected); Lauzon v. Senco Products, Inc. , 123 F. Supp. 2d 510 (D. Minn. 2000), rev’d , 270 F.3d 681 (8 th Cir. 2001)(district court precluded plaintiff's expert from testifying where he was unable to rule out other accident theories, except for ruling out a manufacturing defect. Circuit court reversed, finding that ruling out a manufacturing defect simultaneously ruled in a design defect and that an accurate interpretation of the expert's testimony illustrated that all other theories were ruled out, including accidental ones); Wheat v. Pfizer, Inc. , 31 F.3d 340 (5 th Cir. 1994)(plaintiff's expert excluded where expert could not rule out other possible causes. Hypothesis that a combination of drugs had caused liver damage lacked empirical foundation and had not been subjected to peer review); Rudd v. General Motors Corp ., 127 F.Supp. 2d 1330 (M.D. Ala. 2001)(court admitted testimony by plaintiff's expert, finding that the expert's “method for settling on a cause for the fatigue fracture through a process of eliminating alternative possible causes is, by a preponderance of the evidence, a reliable one. Inference chains built upon such circumstantial evidence are a well- established feature of admissible expert testimony”).
Factors Beyond Daubert’s Big 4 45 Beyond Daubert : Improper Interpretation of Standards Improper interpretation of government standards is a basis to exclude expert. See, e.g., Bammerlin v. Navistar International Transportation Corp ., 30 F.3d 898 (7 th Cir. 1994)(expert testimony that seat-belt mechanism did not comply with federal safety standard should have been excluded by the court); DePaepe v. General Motors Corp ., 141 F.3d 715 (7 th Cir. 1998)(court's determination deeming a federal design standard invalid and refusing to charge jury on that issue, coupled with the misinterpretation of the standard presented to the jury by the plaintiff's experts, required reversal as a matter of law. "A manufacturer is entitled to inform a jury that its vehicles pass muster and to invite the jury to conclude that a vehicle that complies with all federal rules is safe enough to be on the road"); Siharath v. Sandoz Pharmaceuticals Corp., 131 F.Supp. 2d 1347 (N.D. Ga. 2001)(plaintiff's reliance on FDA findings that Bromocriptine may cause hypertension or seizures was misplaced. Plaintiff failed to consider the lower standard of proof for agency determinations than the standard of proof required for the imposition of tort liability. “The agencies' threshold of proof is reasonably lower than that appropriate in tort law, which traditionally makes more particularized inquiries into cause and effect and requires a plaintiff to prove that it is more likely than not that another individual has caused him or her harm”).
Factors Beyond Daubert’s Big 4 46 Beyond Daubert : Speculation About Corporate Motives Expert testimony regarding corporate motives can be reversible error. See, e.g., DePaepe v. General Motors Corp ., 141 F.3d 715 (7 th Cir. 1998)(reversible error for court to permit plaintiff's expert to testify as to corporate motives. Trial courts must be careful to keep experts within their proper scope, otherwise apparently scientific testimony can carry more weight with the jury than it deserves. Plaintiff's expert “lacked any scientific basis for an opinion about the motives of [defendant's] designers”); Chapman v. Mazda Motor of America, Inc. , 7 F.Supp . 2d 1123 (D. Mont. 1998)(expert testimony to the effect that “Mazda's failure to provide all the appropriate documents and drawings requested has prevented plaintiff from determining whether this vehicle was even built to Mazda's own specifications” was stricken. The court found that the quality of discovery is not a proper subject for expert testimony, noting that “expert opinions on the quality of discovery is off limits and out of order”).
Factors Beyond Daubert’s Big 4 47 Beyond Daubert : Speculation About Alternative Warnings Speculation about alternative warnings is also grounds for exclusion. For example, in S hepherd v. Michelin Tire Corp. , expert testimony regarding insufficiency of warnings was excluded. The court observed that research regarding warnings generally concludes that warnings are not particularly effective behavior modifiers and that no empirical data supported expert's opinion that any particular sidewall warning would make tires safer because there was "no testing, jurying, or test marketing of any particular sidewall warnings.“ The court found that defendant's expert actually tested plaintiff's proposed warnings in the real world where personnel at 11 out of 12 service stations ignored the warnings. Finally, the expert could not state with any degree of certainty that his proposed warning system would "probably" have prevented the accident. "In other words, [expert's] testimony does not meet the preponderance test on proximate causation even if he were allowed to testify." There is a big gap between the notion that "it could have made a difference" as opposed to "it is highly probable that it would have made a difference .” 6 F. Supp. 2d 1307 (N.D. Ala. 1997).
(212) 471-8535 MFogel@herzfeld-rubin.com
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Case Law on Admissibility of Expert Witnesses in Insurance Litigation Anna Engh Partner Covington & Burling LLP 202.662.5221 aengh@cov.com September 17, 2014
General Themes of Case Law On Insurance Experts • Expert testimony about the customs and practices of the insurance business – Typically admissible • Expert testimony that directly guides the jury on what the law is and how to apply the law – Typically inadmissible – Cannot usurp the role of the court in instructing the jury on the law • The line is not clear between what is improper expert testimony about what the law is and proper expert testimony about standard industry practice. 93
Standards Applied in Cases • Federal Rule of Evidence 702 - “Helpfulness” Standard – Expert testimony generally permitted if four criteria are met, including “if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Applicable to insurance experts? • Yes: “The fields of knowledge … are not limited merely to the ‘scientific’ and ‘technical’ but extend to all ‘specialized’ knowledge.” (Advisory Committee note) • “Similarly the expert is viewed, not in a narrow sense, but as a person qualified by ‘knowledge, skill, experience, training, or education.’” (Advisory Committee note) 94
Standards Applied in Cases • Federal Rule of Evidence 702 - “Helpfulness” Standard – Standard: Will the testimony be helpful to the trier of fact? • “Where opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time.” (citing 7 Wigmore § 1918) (Advisory Committee note) 95
Standards Applied in Cases • Federal Rule of Evidence 702 - “Helpfulness” Standard – Can an expert go beyond testifying about her expertise and apply that expertise to the facts of the case? • “It will continue to be permissible for the experts to take the further step of suggesting the inference which should be drawn from applying the specialized knowledge to the facts.” (Advisory Committee note) 96
Standards Applied in Cases • Federal Rule of Evidence 704 - “Opinion on Ultimate Issue” – Rule 704(a) did away with common law rule prohibiting expert testimony that resolved an “ultimate issue of fact.” – Under Rule 704(a), “An opinion is not objectionable just because it embraces an ultimate issue.” – However, testimony must meet Rule 702’s helpfulness requirement. 97
Standards Applied in Cases • Federal Rule of Evidence 704 - “Opinion on Ultimate Issue” – Testimony must also comply with Rule 403: “The court may exclude relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” – “These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach …” (Advisory Committee note, Rule 704) 98
Expert Testimony Regarding Bad Faith Conduct Examples of cases where expert testimony was admissible: • Hangarter v. Provident Life & Acc. Ins. Co. , 373 F.3d 998 (9th Cir. 2004) – Insurer claimed that the insured was ineligible for disability benefits because she was not totally disabled and was earning income. – Insured’s expert testified that the insurer deviated from industry practice in discontinuing insurance payments, challenging the insurer’s assertion that it had acted in good faith. 99
Expert Testimony Regarding Bad Faith Conduct • Hangarter v. Provident Life & Acc. Ins. Co. , 373 F.3d 998 (9th Cir. 2004) (con’t) – The insurer argued that this expert testimony “inappropriately reached legal conclusions on the issue of bad faith and improperly instructed the jury on the applicable law.” – The court disagreed, focusing on the expert’s analysis of industry custom: “While [the expert’s] testimony that Defendants deviated from industry standards supported a finding that they acted in bad faith, [he] never testified that he had reached a legal conclusion that Defendants actually acted in bad faith (i.e., an ultimate issue of law).” 100
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