No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes.  The only question is as to how it can do so best.

                                                                     Learned Hand 1901

How to best use or challenge expert and scientific testimony is a question that continually confronts even the most seasoned defense attorneys.  Since the Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals, which resoundingly affirmed the role of trial court judges as “gate-keepers” of scientific evidence, there have been hundreds of cases attempting to refine the doctrine.  509 U.S. 579, 592 (1993).  Even the Federal Rules of Evidence were redrawn to capture the Daubert test, and some states have gone so far as to codify Daubert as part of their court rules.^[1]  Despite the wealth of case law and various interpretations of Daubert, the core question of how best to use scientific evidence and when Daubert challenges are most effective is still elusive. 

Campbell v. Consolidated Rail Corp., No. 1:05-CV-1501 (GTS1GJD), 2009 WL 36890 (N.D.N.Y. Jan. 6, 2009)

The plaintiff sued the defendant railroad companies under the Federal Employer’s Liability Act.  He claimed that working as a welder from September 1976 through June 2005, he was exposed to excessive and harmful cumulative trauma to his hands as a result of the defendants’ negligence.  Ergonomics expert Dr. Robert O. Andres offered fourteen separate opinions in support of these claims.  The defendants moved in limine to preclude on the grounds that Dr. Andres’ opinions were neither reliable nor relevant.  The court granted the defendants’ motion in part, precluding three of Dr. Andres’ opinions and partially precluding the rest.

The Fourth Circuit continues to analyze and apply Daubert to determine the propriety of proposed expert testimony in a variety of factual scenarios, from the value of a syndicated television show, to the identification of a driver who sped away from a routine traffic stop.

Trademark Properties, Inc. v. A&E Television Networks, No. 2:06-cv-2195-CWH, 2008 U.S. Dist LEXIS 87731 (D.S.C. Oct. 28, 2008)

In this breach of contract case brought by Trademark Properties, Inc. and Richard C. Davis against A&E Television Networks (A&E), A&E brought a motion to exclude the testimony of the plaintiffs’ damages expert, Mark Halloran.  Id. at *2-3.  The plaintiffs alleged that they were entitled to half of the net revenues that A&E had earned from the television show “Flip This House”.  Id. at *3.

The Court Examines a Variety of Substantive Attacks on Expert Opinions in this Complex Case.

The United States District Court for the Southern District of Texas, Houston Division, considered motions by several parties regarding experts in a suit arising from a fire that damaged a part for a wind turbine generator.  The part was manufactured in India and shipped to the Port of Houston for subsequent transportation to Minnesota.  During preparations for moving the part from the ship to a truck-trailer, there was a fire that destroyed the part.  Welders were removing a clip that helps secure the part to the ship’s deck. 

Two of the more interesting recent Daubert rulings in the Seventh Circuit are Lewis v. CITGO Petroleum Corp., 561 F.3d 698 (7th Cir. 2009) and Euro Holdings Capital & Investment Corp. v. Harris Trust & Savings Bank, No. 05 C 1181, 2009 WL 650373 (N.D. Ill. Mar. 11, 2009). 

In CITGO the Seventh Circuit provided a useful reminder that district courts not only retain discretion when applying Daubert factors to challenged expert testimony, district courts also retain discretion in deciding how the Daubert issue may be raised and presented in the district court in the first place.  The underlying claim in CITGO was a personal injury action brought by two workers who claimed that they had been injured when exposed to hydrogen sulfide gas while working at a CITGO refinery.  Id. at 700. 

Securities and Exchange Commission v. Kopsky, 586 F. Supp. 2d 1077 (E.D. Mo. 2008)

While polygraph evidence is not per se inadmissible, Eighth Circuit courts continue to closely scrutinize the circumstances of administration of polygraph tests. In SEC v. Kopsky, too many “red flags” doomed to exclusion an expert’s report and testimony regarding polygraph results.

In 2003, Ronald Davis, a corporate officer, was investigated for passing insider information to his broker, Matthew Kopsky.  Davis’ counsel arranged for John Long, a retired FBI polygraph examiner, to test Davis on whether Davis knew the information he provided was nonpublic, material information that was being used by Kopsky.  Long used the “control question” technique, most often used by polygraph examiners.  According to Long’s report, Davis passed with flying colors, and a copy of the report was provided to the SEC.

In Ima North America, Inc. v. Maryln Nutraceuticals, Inc., No. CV-06-344-PHX-LOA, 2008 WL 4628404 (D. Ariz. Oct. 17, 2008), the vendor of a tablet making machine brought a payment deficiency action against a vitamin manufacturer.  The vitamin manufacturer, Maryln, agreed to purchase a Comprima 230 table press for $585,000.  Pursuant to a purchase order with vendor IMA, Marylyn paid IMA $234,000 as a down payment and agreed to pay the balance in full upon delivery of the press.  However, the vitamin manufacturer discovered upon taking delivery of the press that it was not brand new, citing to evidence of rust, powder residue and the age of the press’s parts.  Marylyn refused to pay the remaining balance of the press.  Marylyn’s proposed expert, Damian Hillseth, opined that the press was valued at $225,000 at the time of purchase.

The United States Court of Appeals for the Tenth Circuit recently issued an opinion regarding expert testimony proffered in support of a private securities fraud action.  See In re Williams Securities Litigation-WCG Subclass, No. 07-5119, 2009 WL 388048 (10th Cir., Feb. 18, 2009).  The plaintiff subclass in Williams Security Litigation filed fraud claims under Section 10(b) and Section 20(a) of the Securities Exchange Act and Rule 10b-5.

Plaintiffs’ claims arose after The Williams Companies, Inc. spun off its telecommunications subsidiary, Williams Communications Group (“WCG”).  Approximately two years later, WCG filed for bankruptcy and its stock plummeted to 6 cents per share.  Id. at *1.  The plaintiff sub-class retained an expert witness to offer opinion testimony regarding how the decline in the price of the WCG stock was attributable to the alleged misrepresentations, which allegedly caused WCG’s stock to plummet.  Id. at *2. 

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.