The Eleventh Circuit continues to take a measured approach to its review of Daubert issues. But while the analysis may be straight forward, the facts of the cases in which Daubert issues arise continue to spark interest.
Graff ex rel. Estate of Maldonado v. Baja Marine Corp., No. 08-10413, 2009 WL 226308 (11th Cir. 2009) (unpublished)
On May 16, 2004, after approximately four hours at Cocktail Cove on Georgia’s Lake Lanier, the decedent and a friend raced their two boats at an estimated speed of 50-60 miles per hour toward the friend’s lake-front home. Graff ex rel. Estate of Maldonado v. Baja Marine Corp., No. 08-10413, 2009 WL 226308, at*1 (11th Cir. 2009). As the boats raced across the lake, the decedent’s boat began to lag behind. Id. Though no eyewitnesses observed the accident, the plaintiffs alleged that the boat’s gimbal housing fractured under normal operating conditions due to a manufacturing defect and the boat spun out of control causing the decedent to be ejected from the boat and to die. Id. The defendant boat manufacturer and the manufacture of the gimbal housing alleged that the housing fractured as a result of the boat landing back against the surface of the water after being thrown airborne by another boat’s wake. Id.
Upon the defendants’ motion, the United States District Court for the Northern District of Georgia granted summary judgment in favor of the defendants finding “no genuine dispute existed as to whether the gimbal housing contained a manufacturing defect.” Id. The plaintiffs appealed the grant of summary judgment as well as the district court’s exclusion of their expert and sanctions for spoliation.
Germaine to the Daubert question, the Eleventh Circuit examined the district court’s analysis regarding its decision to exclude the plaintiffs’ expert metallurgist who attempted to opine that the manufacturing defect was in the gimbal housing. His opinion was that it was less ductile and therefore defective. However, the plaintiffs’ expert did not reach his conclusion until after and aluminum expert pointed the metallurgist in the right direction. At a Daubert hearing in the district court, the defendants moved to excluded the plaintiffs’ metallurgist because he was “not qualified to competently testify…and the testimony lacked a sufficiently reliable foundation.” Baja Marine Corp., at *4.
The Eleventh Circuit found that the district court’s exclusion was proper because the plaintiffs’ metallurgist did not have experience dealing with the metal properties at issue until they were identified by another expert one month before the metallurgist submitted his report. Further, the metallurgist did not identify a reliable basis for his failure theory and did not compare the subject part with a properly manufactured part. Baja Marine Corp., at *4-5.
Wilson v. TASER International, Inc., No. 08-13810, 2008 WL 5215991 (11th Cir. 2008)
On September 7, 2004, David Wilson attended a TASER certification class at the Georgia Pubic Safety Training Center. Wilson v. TASER International, Inc., No. 08-13810, 2008 WL 5215991, at *1 (11th Cir. 2008). He was shown a short video that included warnings, and then volunteered to be shocked by the TASER as part of his training. After the being shocked, Wilson continued to experience back pain and muscle spasms. In April 2006, Wilson was diagnosed with compression fractures in his back which his treating physician stated were caused by TASER exposure.
Wilson brought claims in the United States District Court for the Northern District of Georgia, alleging that TASER failed to warn of a known risk which caused the compression fracture. Wilson, at *1. After an early motion for summary judgment was denied, TASER filed a Daubert motion to exclude the plaintiff’s treating physician’s expert testimony regarding causation, claiming that the opinion was unreliable. Id. at *2. The district court explained that although physician was qualified to offer opinions on medical causation, his opinion in this case was unreliable because “the opinions of his colleagues, upon which he relied, were speculative and conclusory and because the article and one case study referred to by [the physician] did not provide reliable support for his opinion.” Id. The plaintiff argued that as a treating physician, their expert was not subject to the requirements of Daubert and Kumho Tire. See id. at *3.
In upholding the lower court’s ruling, the Eleventh Circuit agreed that “a treating physician may testify as a lay witness regarding his observations and decisions during treatment…once the treating physician expresses an opinion unrelated to treatment which is based on scientific, technical, or other specialized knowledge, that witness is offering expert testimony for which the court must perform its essential gate-keeping function as required by Daubert.” Wilson, at *3 (citing United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) and Leathers v. Pfizer, Inc., 233 F.R.D. 687, 688 (N.D. Ga. 2006)). Thus, because the treating physician’s statement about the cause of the injury to Wilson was a hypothesis it was expert testimony. Wilson, at *4 (noting that the ability to answer hypothetical questions is the essential difference between expert and lay witnesses).
The Eleventh Circuit found that the plaintiff’s treating physician “did not demonstrate that his opinion that TASER exposure may cause compression fractures is testable, he did not offer any error rate for his opinion, he did not show any evidence that his opinion has been peer reviewed or that he used a peer-reviewed source to reach his opinion, and he did not show the general acceptance of his opinion.” Wilson, at *5. Therefore, the district court did not abuse its discretion in excluding his testimony. Id.
W. M. Bains Fleming, III practices with the firm of Norman, Wood, Kendrick & Turner in Birmingham, Alabama. Mr. Fleming’s practice areas include toxic and mass torts, products liability, medical malpractice, and general insurance defense. He received J.D. from the Cumberland School of Law at Samford University and his B.A. from Washington and Lee University. He can be reached at Norman, Wood, Kendrick & Turner, The Financial Center-Suite 1600, 505 20th Street North, Birmingham, AL 35203, by phone at (205) 328-6643 or by email at bfleming@nwkt.com.
