Within the Tenth Circuit, several new opinions from trial courts were issued excluding proffered expert witnesses from testifying because they failed to meet Daubert standards. The cases discussed herein reflect that many trial courts within the Tenth Circuit have not shirked their duties required by the Supreme Court’s ruling in Daubert. See Holland v. GMAC Mortgage Corp., 2006 WL 1328090 (D. Kan. April 28, 2006); Smith v. Sears Roebuck & Co., 2006 WL 687151 (W.D. Okla. March 17, 2006); United States v. Hasan, 2006 WL 964775 (N.D. Okla. April 12, 2006); see also, Sunlight Saunas, Inc. v. Sundance Sauna, Inc., 2006 WL 880246 (D. Kan. April 5, 2006).
In Holland v. GMAC Mortgage Corp., defendant GMAC moved to exclude the plaintiffs’ expert’s opinions concerning the credit reporting industry and how inaccurate credit reporting adversely affects consumers in general. Holland, 2006 WL 1328090 at *2. The plaintiffs’ expert witness had an extensive background in selling and financing new and used cars with involvement in over 40,000 credit applications between 1974 and 1992. Id. Despite the plaintiffs’ expert witness’s experience in the automotive sales business, GMAC argued that this practical experience did not qualify him as an expert witness concerning the plaintiffs’ damages due to GMAC’s alleged inaccurate reporting of the plaintiffs’ delinquent payments to various credit reporting agencies. Id. GMAC argued that the plaintiffs’ expert did not have any formal education or training in credit evaluation, and did not have any training and/or experience in accounting, mortgage lending, business, credit administration, real estate lending, credit reporting, or consumer credit scoring in general. Id.
Perhaps more important to the district court, the plaintiffs’ expert had not met with the plaintiffs, nor had he reviewed their depositions or interrogatory answers. Id. at *3. The expert admitted that he had not reviewed any information provided in discovery and had no specific knowledge concerning these plaintiffs, and he had no knowledge as to why various companies had previously denied credit to the plaintiffs. Based on these conceded facts, the court ruled that the plaintiffs’ expert’s opinions would be based on conjecture and would not assist the trier of fact. Id. (citing Keiffer v. Weston Land, Inc., 90 F.3d 1496, 1499 (10th Cir. 1996)).
The court further ruled that the plaintiffs’ expert’s opinions were not the product of any reliable methods. The plaintiffs’ expert witness used the “five times earnings,” which he had used to estimate the plaintiffs’ damages resulting from credit application denials. Holland, 2006 WL 1328090 at *3. The expert testified he had never seen this theory published previously, did not have any data to support its use in this particular case and never conducted any investigations to verify the accuracy of this theory. Id. Ultimately, the court ruled that the plaintiffs’ expert witness would not be helpful to the trier of fact in light of his lack of formal training and education in credit reporting and his unsupported methods for calculating the plaintiffs’ alleged damages. Id.
In a case from Oklahoma, the United States District Court from the Northern District of Oklahoma precluded a defendant’s expert witness also on the grounds that her opinions did not meet Daubert standards. See Hasan, 2006 WL 964775. In Hasan, the criminal defendant was from Somalia and allegedly had difficulty understanding English. The defendant’s retained expert’s specialty was in “first language acquisition,” or how individuals acquire a native language and how they learn another language after they acquired their first language. Id. at *2. The defendant’s expert administered various language tests to the defendant to determine his language proficiency. Id. The expert witness attempted to ascertain if the defendant was pretending to have less language skills than he really possessed. The expert also focused on “cultural issues that needed to be taken into consideration when attempting to judge the veracity of the speaker.” Id. at *3.
The government did not contest the expert witness’s qualifications in linguistics and oral proficiency interviews and examinations, but argued that the testing methods she used in the case were unreliable and not designed for forensic use. Id. at *2. The government argued that there had been no studies establishing the value of the tests for forensic use and that there were no known error rates to determine whether a person was purposefully attempting to appear deficient in language skills. Id.
The court excluded the expert witness’s opinions under Daubert finding that the tests administered to the defendant were typically used on persons who desired to score high, and that the tests were not designed to determine if an individual is purposefully attempting to score lower than his or her actual language abilities. Id. The court also ruled that there was no evidence presented to determine whether the defendant’s ability to answer the questions posed during the testing in his native language were any more grammatically correct than his English responses. Id. The court determined that there was “no simple way to determine the reliability of the tests performed on the defendant.” Id. Accordingly, the court excluded the opinions from being offered at the time of trial pursuant to Federal Rule of Evidence 702 and Daubert. Although no expert opinions were to be offered at the time of trial concerning defendant’s language skills, or lack thereof, the court appointed an interpreter for the defendant to uphold his due process rights in the criminal trial. Id.
In another federal case from Oklahoma, the plaintiff’s four year old son was tragically killed when a garage door closed and pinned the small child underneath the closed door. See Smith v. Sears Roebuck & Co., 2006 WL 687151. The plaintiff offered an expert witness to testify that the garage door opener was defectively designed because the reverse mechanism could fail without warning, and that the garage door opener was “prone to failure because in ordinary use [the reverse mechanism] would rarely be actuated and the mechanism would tend to get inoperably stuck when not actuated frequently.” Id. at *2. The plaintiff’s expert witness also opined that the door opener was defectively designed because there was no back-up safety mechanism and because the warnings in the manual were inadequate. Id.
The defendant moved to exclude the plaintiff’s expert witness arguing that the expert was not qualified to offer these opinions, and that the testimony was neither reliable nor relevant. Id. The court determined that the expert’s qualifications and background were sufficient to qualify him to offer opinions in the area of product safety based on the fact that he possessed a bachelor of science in engineering and a master’s degree in philosophy of science. He had also co-authored an article entitled, “Automatic Garage Door Child Entrapment Hazards.” Id. at *3. But the court ruled that, despite his qualifications, his opinions were not reliable under a Daubert analysis. Id.
The court assessed the following factors when making the determination as to whether his opinions were reliable:
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1. Whether the expert’s theory or technique can be or has been tested for reliability;
2. Whether the expert’s theory or technique has been subjected to publication or peer review;
3. Whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique’s operation; and
4. Whether the theory has been accepted in the scientific community. |
Based on these principles, the court ruled that the plaintiff’s expert’s opinions were not reliable because the expert acknowledged that mechanical devices, like the garage door opener, do not last forever and were subject to failure without warning. In this particular case, the expert acknowledged that that garage door motor was old (it was installed in 1979), that the motor was worn, and that the capacitor was “weeping.” Id. The expert summarily dismissed these conceded facts and determined that the reverse mechanism failure was due to a defective design. The court determined that the plaintiff’s expert’s conclusion was not based on any actual testing of the opener itself or testing of any similar garage door opener, and that the opinions failed to take into account the plaintiff’s own testimony that she tested the mechanism on a regular and consistent basis. Id.
The court determined that the expert’s opinion did not adequately account for alternative reasons for the system’s failure, such as incorrect lubrication over the lifespan of the garage door opener. The court also determined that the expert failed to account for the possibility that the failure to reverse was caused by an old and worn motor with insufficient torque to trip the door’s reverse mechanism. Id. The court ruled that the expert did not have an adequate foundation to conclude that a design defect, as opposed to other possible factors, actually caused the failure in the reverse mechanism. Id.
As for inadequate warnings in the owner’s manual, there was undisputed evidence that the plaintiff had never read the garage door opener’s manual; therefore, expert testimony regarding the inadequacy of the warnings in the owner’s manual was irrelevant and inadmissible. Id. (citing Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1332 (10th Cir. 1996)) (holding that the presumption under Oklahoma law that a person read and heeded the warning labels on a product disappear when evidence indicates that the person never read the warning labels).
These cases provide examples of challenges that defense counsel can raise to exclude expert witnesses who offer opinions that are unreliable based on the information, or lack thereof, used by the expert witness. These cases also show that even if the expert witness is well qualified and possesses excellent credentials, either academically or through practical experience, the opinions offered by the witness must still be reliable for admissibility purposes under Federal Rule of Evidence 702 and Daubert.
Darren K. Sharp is a senior associate attorney in the Kansas City office of Armstrong Teasdale LLP, where he has practiced since 1999. He is the Tenth Circuit editor for the DRI Daubert Online newsletter. Mr. Sharp advocates for corporate clients in commercial disputes and business related tort cases in state and federal courts in Kansas, Missouri, and Colorado, and has arbitrated commercial disputes before panels and single arbitrators. Mr. Sharp also represents clients in state and federal courts of appeals. Mr. Sharp can be reached at Armstrong Teasdale LLP, 2345 Grand Blvd., suite 2000, Kansas City, Missouri 64108, ph. 816-221-3420, or by e-mail at dsharp@armstrongteasdale.com.
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