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Everyone hopes to have some ability to influence their expert witnesses.  Some attorneys try to control their experts by engaging in the risky approach of only providing them limited information to. Others exert  more subtle influence through their assistance in the preparation of their expert’s report. Of course, most expert witnesses are professionals in their own right and are not subject to a great deal of influence. That is just as well given the very real possibility that any influence exerted by counsel over an expert will be discovered by and put to effective use by the other side.  Where counsel loses sight of those risks, and an expert is too willing to please, disaster can ensue – as plaintiffs’ counsel learned in Manez v. Bridgestone Firestone North American Tire, LLC, 533 F.3d 578 (7^th Cir. 2008).

The issue of reliability under Daubert was addressed in three cases this spring.

In Rivera-Cruz v. Latimer, Biaggi, Rachid & Godreau, LLP, 2008 U.S. Dist. LEXIS 46562 (D.P.R. June 16, 2008), the expert’s lack of credibility resulted in the court finding that his testimony was not the product of reliable methods.  One of the issues to be decided in the case was whether certain files on Defendant Godreau’s computer contained pornographic images.  Another involved email sent from a certain email account. 

Nisanov v. Black & Decker, 2008 WL 906708 (E.D.N.Y. April 3, 2008)

Plaintiff was using an electric lawn mower manufactured by the defendant.  He turned the mower off using a handle-mounted “rocker” switch and turned it over to clear grass clippings from its undercarriage.  He did not unplug the mower from the power source.  The mower shifted, causing the “rocker” switch to move to the “on” position.  The mower’s blade engaged, amputating several of plaintiff’s fingers.

In one of the Third Circuit updates from last year, we discussed the case of Pineda v. Ford Motor Company, in which the district court excluded the testimony of plaintiff’s sole liability expert and granted the defendant summary judgment.  2006 U.S. Dist. LEXIS 83439 (E.D. Pa. Nov. 15, 2006) (Daubert decision); 2006 U.S. Dist. LEXIS 91992 (E.D. Pa. Dec. 19, 2006) (summary judgment).  Earlier this year, the Third Circuit Court of Appeals reversed both decisions.  520 F.3d 237, 2008 U.S. App. LEXIS 6091 (3^rd Cir. Mar. 24, 2008).  Since we previously explored these lower court decisions, a discussion of the Third Circuit’s subsequent treatment of them is warranted.

The Fifth Circuit Court of Appeals affirmed the United States District Court for the Southern District of Mississippi’s determination to exclude the testimony of pPlaintiff’s accident reconstructionist in a wrongful death case concerning a vehicle/pedestrian accident.  Chan v. Coggins, 2008 U.S. App. LEXIS 20987 (5^th Cir. Oct. 2, 2008) (unpublished). 

The Sixth Circuit Court of Appeals recently decided three appeals focusing on the reliability of expert witness testimony under Daubert.  See In re Scrap Metal Antitrust Litigation, 527 F.3d 517 (6^th Cir. 2008); Sigler v. American Honda Motor Co., 2008 WL 2649501 (6^th Cir. July 8, 2008); and Early v. Toyota Motor Corp., 2008 WL 2001727 (6th Cir. May 8, 2008).  The In re Antitrust decision addresses an issue defense practitioners frequently face – the question of weight versus the admissibility of expert testimony.  Sigler and Early are well reasoned decisions confirming that courts continue to bar the door against unreliable and speculative “expert” opinions.  

In United States v. Mikos, 539 F.3d 706 (7^th Cir. 2008), the Seventh Circuit provides a good reminder of the breadth of a district court’s discretion when it comes to the admission of expert testimony.  Mikos involved the appeal by a podiatrist who was convicted of murdering one of his own patients for cooperating with the government in a Medicare fraud investigation.  The details of both the Medicare fraud and the murder are not particularly relevant to the Daubert issues in the case.  Suffice it to say that “[t]he evidence of fraud and witness tampering is overwhelming and essentially uncontested . . . .  The evidence of murder also is strong.”  Id. at 708. 

American Family Mut. Ins. Co. v. Hewlett-Packard Co., 2008 U.S. Dist. LEXIS 40366 (D. Minn. May 19, 2008); Lingo v. Burle, 2008 U.S. Dist. LEXIS 34174 (E.D. Mo., April 25, 2008)

Two district courts within the Eighth Circuit found that experts are not limited to a particular guide recognized as the industry standard in forming their opinion.  The Minnesota District Court held that for an expert’s investigation into the origin and cause of a fire to be admissible in court, it is not required that he exclusively follow the National Fire Protection Association’s Guide for Fire and Explosion Investigations (“NFPA 921”). 

The Eastern District of California held that an expert’s opinion regarding destructive cults was reliable and relevant in an employment discrimination suit.  Noyes v. Kelly Services, Inc., 2008 WL 782846 (E.D. Cal. Mar. 21, 2008). 

Plaintiff was employed as a Software Developer in defendant’s Nevada City, California office.  The Vice President in charge of the office was a member of a religious organization called Fellowship of Friends (“FOF”).  Plaintiff alleged that defendant denied her the opportunity to compete for a promotion, selecting another person with lower qualifications who was also a member of FOF.  Plaintiff filed an employment discrimination suit, alleging, inter alia, violation of Title VII due to plaintiff’s religion. 

The Tenth Circuit Court of Appeals issued an opinion in March 2008 regarding a well-publicized trial, which resulted in the criminal conviction of Joseph Nacchio, the former CEO of Qwest Communications International, Inc.  Mr. Nacchio was convicted on nineteen counts of insider stock trading.  Mr. Nacchio appealed arguing, in part, that the trial judge incorrectly excluded his expert’s opinion testimony.  See United States v. Nacchio, 519 F.3d 1140 (10^th Cir. 2008).

Recently, the Eleventh Circuit has given great deference to the district courts’ role as gatekeepers under Daubert and its progeny.  This deference was evident in two recent cases one criminal and one civil. 

On the criminal side, in the child pornography case of U.S. v. Gomes, 2008 WL 2212000 (11^th Cir. 2008) (unpublished), the Eleventh Circuit examined the trial court’s admission of the state’s expert witness who was proffered to testify regarding the age of children in photographs seized from the defendant.  The Eleventh Circuit noted: