Since March, courts of the Fourth Circuit have continued to apply the traditional Daubert standards in three notable decisions. In these decisions, which include a lease dispute, a personal injury action and an unfair competition action, the courts focused primarily on the major Daubert concerns of relevance and reliability. Safeway v. Sugarloaf Partnership, LLC, 423 F. Supp. 2d 531 (D. Md. 2006); Eggleston v. Wal-Mart Stores East, LP, 2006 WL 1050654 (E.D. Va. 2006); Pediamed Pharmaceuticals, Inc. v. Breckenridge Pharmaceutical, Inc., 419 F. Supp. 2d 715 (D. Md. 2006).
In Safeway, the court excluded expert testimony on the grounds that such testimony would not be helpful to the trier of fact and was not based on “scientific, technical or other specialized knowledge.” Safeway, 423 F. Supp. 2d at 538. A tenant of a shopping plaza brought an action against the landlord seeking reformation of a lease, a declaration that the landlord did not and could not terminate the lease, and various monetary damages. Id. at 531. The landlord moved to strike the tenant’s expert report regarding the lease. Id. The court held that expert testimony should only be admitted if it 1) will be helpful to the trier of fact, and 2) concerns scientific, technical or other specialized knowledge. Id. at 538. The court found that the testimony failed both tests. Id. At issue in the case were 1) the interpretation of the contract, and 2) if the contract was ambiguous. Id. The expert’s testimony was introduced to prove the intent of the landlord; however, the court found it unhelpful because the expert was not present at the signing of the lease and had no personal knowledge of the parties’ intent. Id. The court further excluded testimony regarding the “effect of continuous operation clauses,” because such testimony would be based upon legal and not “scientific, technical or other specialized knowledge.” Id. The court reiterated the well accepted rule that “[e]vidence supplied by experts as to legal conclusions is not admissible.” Id. at 539.
Again, in Eggleston, the court excluded expert testimony, confirming the role of the district court as gatekeeper of expert testimony. Eggleston, 2006 WL 1050654. In that case, the plaintiff was hit by a motorized shopping cart driven in the Wal-Mart store by another customer. Id. Wal-Mart sought to introduce expert testimony regarding the standard of care owed to customers in such situations. Id. The court found that the expert’s education, training and work history did not qualify him to render opinions as to Wal-Mart’s breach of the standard of care it owed to its customers. Id. The court further held that much of the expert’s testimony amounted to speculation on subjects outside his field and would be neither reliable nor helpful to the jury. Id.
Finally, in Pediamed, the court considered the admissibility of surveys completed by pharmacists regarding opinions of the drugs at issue in the case. Pediamed Pharmaceuticals, 419 F. Supp. 2d 715. In Pediamed, a pharmaceutical company that developed medication for children brought an action against competitors that manufactured and sold a competing generic drug. Id. The plaintiff sought to introduce evidence of a survey of pharmacists regarding the similarity of the drugs. Id. The defendant argued that the survey evidence was barred by Daubert. Id. The court held that “the majority rule is that while technical deficiencies can reduce a survey’s weight, they will not prevent the survey from being admitted into evidence." Id. The court concluded that the survey was sufficiently relevant and reliable to warrant consideration and, as a result, admitted the survey evidence. Id.
Mr. Hession is an associate in the Atlanta office of Lord, Bissell & Brook LLP. His practice includes commercial litigation, with an emphasis aerospace and aviation law. He defends large product manufacturers against claims related to major airline disasters, as well as those arising from general aviation aircraft accidents. He also practices employment, insurance and contract law. He can be reached at 404-870-4649 or mhession@lordbissell.com.
Mr. Wood is an associate in the Atlanta office of Lord, Bissell & Brook LLP. His practice includes a wide variety of commercial litigation matters including intellectual property, trusts and estates, insurance, employment and contractual disputes. He can be reached at 404-870-4679 or wwood@lordbissell.com.
