While the substance of Rule 702 and Daubert analyses are often of greater interest than the procedural aspects of presenting expert testimony, recent decisions from district courts in the Third Circuit remind us of the effects that procedural practice and posture can have on the ultimate admissibility of expert testimony.
Three district courts discussed how Daubert decisions are affected when a case is being tried to a judge rather than a jury. One court noted that its “gatekeeper” role is “less essential” during a bench trial. Indiana Area School Dist. v. H.H., 2006 WL 1134942 (W.D. Penn. Mar. 14, 2006). Another court, while noting that Daubert standards are less stringent in bench trials, stated that “the court cannot be transformed from fact-finder into medical expert, presumed to have medical knowledge . . . .” Miller v. U.S., 422 F. Supp. 2d 441, 445 (D. Del. 2006). Thus, the plaintiff’s proffered expert testimony was excluded under Daubert standards, even under the relaxed requirements in a bench trial. Id. Finally, another court, in a bench trial setting, relaxed the rule that generally prohibits expert witnesses from stating opinions that constitute legal conclusions. Suter v. General Acc. Ins. Co. of America, 424 F. Supp. 2d 781 (D. N.J. 2006). Since the purpose of the general rule “is to avoid confusing the jury or usurping the role of the judge in instructing the jury on the relevant law,” the court reasoned that such testimony is less worrisome when a case is tried solely before a judge. Id.
In another procedural decision worth mentioning, a court excluded expert testimony from both sides because the proffered testimony exceeded the scope of the final pretrial order. Thomas & Betts Corp. v. Richards Mfg. Co., 2006 WL 902148 (D. N.J. Apr. 4, 2006). In this complex case, the court was particularly concerned with “moving target” testimony, stating that final pretrial orders are designed to prohibit this practice and avoid the surprise and confusion that result from it. Id.
Finally, the case of Engers v. AT & T Corp., 2006 WL 1210507 (D. N.J. Apr. 17, 2006), also dealt with two distinct and important procedural issues. First, the district court was analyzing Daubert issues by way of an appeal of a decision by a magistrate judge, who denied the defendants’ motion to exclude the plaintiffs’ expert testimony. The court thus began its analysis by discussing the standard of review to be utilized by a district court when reviewing a magistrate judge’s Daubert decision. The court used the abuse of discretion standard, but noted that it was empowered to exercise “plenary review” over the magistrate’s legal interpretation of Rule 702 and Daubert standards. The court found the deferential abuse of discretion standard especially appropriate since the magistrate had been managing the litigation from its beginning and was familiar with the underlying issues.
The court’s decision in Engers was also greatly influenced by the procedural posture of the case. While the court was reviewing the magistrate judge’s Daubert decision, it also had pending before it dispositive motions that were filed by both sides. Many of the dispositive motions were related to the Daubert issues, with the plaintiffs relying on the expert testimony that the defendants were seeking to exclude, and the defendants pointing to the inadmissibility of that the testimony in support of their dispositive motions. Thus, the court stated, if it found the proffered testimony “entirely inadmissible, it could essentially function as a determination on the merits of the pending motions.” The court was uncomfortable with taking this course of action, preferring to delay its decisions on the Daubert issues until it took up the pending dispositive motions. Accordingly, the court denied the defendants’ appeal of the magistrate’s ruling without prejudice, and stated that it would examine each Daubert issue in the context of the dispositive motions.
Mark D. Jicka is a Member of Watkins & Eager, PLLC in Jackson, Mississippi, where he has practiced since 1991. He is currently on the Steering Committee for DRI’s Products Liability Committee and serves as the Expert Witness Chair for that Committee. His practice focuses on defending manufacturers at trial and on appeal. He has handled cases for clients in Mississippi, Tennessee, Arkansas, Louisiana and Kentucky. He also has significant experience in defending large corporations in multi-plaintiff catastrophic causes of action involving both federal and state law. He has served as regional and national counsel regarding discovery issues for both manufacturers of components and finished products. He has also won numerous motions to exclude experts under both Daubert and Frye in both federal and state courts. Mark can be reached at Watkins & Eager, PLLC, PO Box 650, Jackson, Mississippi, ph. 601-948-6470 or by email at mjicka@watkinseager.com.
Graham P. Carner is an associate with Watkins & Eager, PLLC, in Jackson, Mississippi, where he has practiced since being admitted to the bar in the fall of 2004. His practice focuses on product liability and general litigation matters. Graham can be reached at Watkins & Eager, PLLC, PO Box 650, Jackson, Mississippi, ph. 601-948-6470 or by email at gcarner@watkinseager.com.
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