In Piché v. Nugent, __ F. Supp. 2d __, 2006 WL 1648943 (D. Me. June 14, 2006), the Daubert issue arose in the context of the defendants’ attempt to assert a comparative fault defense in a motorcycle accident case. Mr. Piché and his wife Ms. Laprise were riding a motorcycle without wearing helmets when the defendant fell asleep and struck their motorcycle. Ms. Laprise, the passenger, died five days after the accident, while Mr. Piché suffered only minor injuries. The Daubert issue arose when the defendants tried to present expert testimony on the issue of whether the passenger’s failure to wear a motorcycle helmet contributed to her brain injury and death. (It was undisputed that the Piché-Laprises did not contribute to the accident – the focus was on their contribution to their own injuries.) The defendants tried to treat the case as a straightforward accident and utilized experts who relied on a body of research dealing with the general correlation between helmet use and head injuries.
The court was not impressed. It took the time to lay out numerous scientific questions that were left unanswered by the defense experts, granted the plaintiffs’ motion for summary judgment on the defendants’ affirmative defense, and struck the defense experts. The court held that the studies relied upon by the defense experts dealt with trends in motorcycle accident data, but did not provide a reliable foundation to predict that a helmet would more likely than not have prevented Ms. Laprise from experiencing an inertial brain injury capable of causing her death or a debilitating brain injury that, from a legal damages perspective, may have been just as bad. As a consequence, the court held that Mr. McNally’s helmet opinion was not adequate to assist the jury to determine the only question which it possibly could have addressed-- how to calculate a fair and equitable reduction in any damage award on account of the alleged fault of either Ms. Laprise or Mr. Piché for Ms. Laprise’s failure to wear a helmet.
Arroyo v. Brady, 2006 WL 962151 (D. Mass. April 11, 2006), involved a failed attempt by a convicted criminal defendant to seek habeas relief based on the state trial court’s failure to conduct a Daubert type hearing regarding the reliability of DNA evidence. The district court rejected Arroyo’s claim on two grounds – first, his lawyer failed to object to the testimony or request a Daubert hearing at trial; and second, such failure was not gross ineffective assistance of counsel warranting habeas relief because the Supreme Judicial Court, on appeal, performed its own analysis of the DNA expert’s opinion and “found no basis to conclude that it was without adequate scientific basis” or admitted erroneously. The lesson from this case is that, even in the criminal context, a Daubert challenge should be made before trial or else it risks being waived.
In Battista v. Dennehy, 2006 WL 1581528 (D. Mass. Mar. 22, 2006), the plaintiff unsuccessfully sought to strike an expert report submitted by the Commonwealth defendants in opposition to plaintiff’s request for an injunction compelling certain treatment. The plaintiff was civilly committed as a sexually dangerous person and placed at the Massachusetts Treatment Center for Sexually Dangerous Persons. Battista was diagnosed with Gender Identity Disorder and a doctor prescribed female hormones to treat the condition. This treatment was put on administrative hold pending further review and resulted in this lawsuit. The Commonwealth actively sought a way to treat the plaintiff’s condition and sent her to an outside facility specializing in Gender Identity Disorders. That facility recommended hormone treatment and the Commonwealth’s in-house physician approved the treatment plan. Nevertheless, the Commonwealth refused hormone treatment based on a dispute among nine medical professionals who examined the plaintiff on the appropriateness of the treatment. In rebuttal to the plaintiff’s arguments and reliance on two reports that recommended hormone treatment, the Commonwealth retained a national expert from Johns Hopkins to review the reports and offer an opinion. The plaintiff moved to exclude the report on Daubert grounds, saying the expert was not qualified. The district court disagreed, reciting the expert’s lengthy experience in the Gender Identity Disorder field and the comprehensive nature of her report. However, the court did side with the plaintiff in one regard – because the expert did not personally evaluate the plaintiff, the court did not give the expert’s report and opinion the same weight as the other treating physicians’ reports. The lesson learned here is that even the best experts and best expert reports, while admissible, may still not be given the weight you want or need if they do not exhibit the same “hands on” study of the issue as other reports or testimony before the fact finder.
In Roney v. Wendy’s Old Fashioned Hamburgers of New York Inc., 2006 WL 696251 (D. Me. Mar. 17, 2006), recommendation adopted, 2006 WL 1030106 (D. Me. April 18, 2006), the Daubert “Beef” was over the plaintiff’s medical expert who linked the plaintiff’s dinner at Wendy’s with her subsequent intestinal ailments. The Roney family was enjoying a meal out at a local Wendy’s and all four ordered cheeseburgers. While the rest of her family apparently received properly cooked burgers, Mrs. Roney allegedly took two bites of an undercooked hamburger before becoming revolted by the “blood” running out of the meat. Instead of showing it to a Wendy’s employee, she simply threw the sandwich away. The next day, Mrs. Roney began to feel ill and experience diarrhea and frequent urination. Two days later she went to the hospital by ambulance. At the hospital, she tested negative for E-coli bacteria. Nevertheless, in her suit against Wendy’s, Mrs. Roney proffered expert testimony from her treating osteopathic doctor that she became ill as a result of eating meat contaminated with E-coli bacteria. The doctor based his opinion on his review of her records, his experience and training, and a differential diagnosis that relied on circumstantial evidence of no other possible causes. The defense countered with its own experts that pointed to two other plausible explanations for the plaintiff’s illness. The Magistrate Judge thoroughly reviewed the conflicting medical testimony, but at the end of the day, ruled that Daubert does permit differential diagnoses if performed properly, and that it appeared that the plaintiff’s methodology was reliable in that his affidavit clearly posited his rationale and similarly considered, analyzed, and provided the bases for rejecting the defense opinions. Thus, she allowed the plaintiff’s expert to offer his testimony, pointing out that it didn’t have to establish conclusive proof and that it could, in fact be wrong. Once again, the court exercised its gatekeeper role and, after testing the opinion for scientific reliability, ultimately left it to the fact finder to weigh the evidence and resolve the battle of the experts.
Gonzalez v. Executive Airlines, Inc. d/b/a American Eagle, __ F.R.D. __, 2006 WL 833134 (D. P.R. Mar. 8, 2006) is not a case where the court applied Daubert to rule on an issue before it. Rather, the court points out that the defendant is not prejudiced by its decision because it will enjoy the protections afforded by Daubert at trial. In Gonzalez, the defendants filed a motion to compel the preparation of an expert report by a treating psychologist identified in the plaintiff’s Rule 26 disclosures as a witness who would be testifying about the plaintiff’s PTSD claim. The court held that “so long as the testimony of Dr. Rivera is limited to the topics of the nature and treatment of Plaintiff’s psychological condition, and the opinions that he presents are limited to those he formed as part of his treatment of the patient, Dr. Rivera need not file an expert report as required by Rule 26(a)(2)(B).” After this ruling, the court went on to point out that the gate keeping role contemplated by Daubert extends to the “percipient witness” who happens to be an expert. Therefore, the court held, the defendant has every right to seek discovery from the plaintiff’s treating doctor on the areas traditionally explored in Daubert challenges, and on the matters required to be disclosed by experts in their Rule 26 disclosures.
Matt Cairns is a Director and Chair of the Litigation Group at Ransmeier & Spellman in Concord, New Hampshire. Matt’s practice runs the gamut from complex products liability and commercial cases to municipal and civil rights defense to general tort defense. He is the Northeast Regional Director for DRI and the Chair of the DRI Membership Committee. He was assisted in this issue’s column by Molly McPartlin, who also practices in the products liability area, and has an extensive employment practice.
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