Since our last installment, the Third Circuit Court of Appeals and the other courts within that circuit have rendered many decisions addressing, both directly and indirectly, expert testimony issues under Daubert.  We will explore two of those decisions in this update.  In the first case, the Third Circuit discussed the extent to which Daubert applies to administrative hearings, thus clarifying the issue within the Third Circuit.  In the second case, in which the United States District Court for the Western District of Pennsylvania re-considered its own order excluding an expert for being unqualified, we see the importance of providing the court with all of the information needed to find that a proffered expert is qualified.

In National Taxpayers Union v. United States Social Security Administration, No. 07-3381, 2008 U.S. App. LEXIS 25802 (3d Cir. Dec. 11, 2008) (unpublished), the Third Circuit addressed an appeal from a decision by the Commissioner of the Social Security Administration.  The Commissioner’s ruling found that National Taxpayers Union (“NTU”), a non-profit advocacy group, had violated a section of the Social Security Act by distributing deceptive direct mailing pieces.  Because of the violations, the Commissioner had assessed NTU a hefty civil penalty.  While the bulk of the Third Circuit’s opinion is not relevant for our purposes, one Daubert-related issue is discussed.

One of the objections raised by NTU was that the Commissioner improperly relied upon testimony from the government’s expert witness. NTU complained that the testimony of this expert was “sloppy and unscientific” and should have been excluded at the administrative hearing under Daubert. The Third Circuit dismissed this complaint without much discussion, holding that “neither the Federal Rules of Evidence nor Daubert apply to administrative hearings.” In so holding, the court cited 20 C.F.R. §498.217(b), which states that administrative law judges are “not bound by the Federal Rules of Evidence, but may be guided by them in ruling on the admissibility of evidence.”  The Third Circuit noted that this decision was consistent with an opinion issued by the Ninth Circuit, but more strict than the rule followed by the Seventh Circuit, which applies “the spirit of Daubert” to administrative hearings.

In Adani Exports Ltd. v. AMCI (Export) Corp., No. 02:05-cv-0304, 2009 U.S. Dist. LEXIS 4146 (W.D. Pa. Jan. 21, 2009), the Western District of Pennsylvania, in a case involving a dispute over a coal supply agreement, re-considered its prior decision excluding one of the defendant’s experts.  The excluded expert, Mark M. Gleason, had been proffered by the defendant to offer opinions to rebut the damages evidence presented by the plaintiff.  The court initially excluded Gleason, ruling that he was unqualified.  This decision was based upon the briefing by the parties as well Gleason’s deposition, expert report, and curriculum vitae.  The court did not conduct a Daubert hearing.  After considering these sources, the court found that Gleason “does not possess, nor does he claim to possess, expertise with regard to the coal industry in general or international . . . coal trading in particular.”  

The defendant filed a motion requesting that the court reconsider its decision.  In support of this motion, the defendant attached an affidavit from Gleason, detailing his “extensive experience in having provided financial and damage analysis in matters involving the coal and related industries.”  The court noted that this was first time that it had been provided information regarding Gleason’s experience in the particular field at issue.  The defendant also focused on the fact that the court did not conduct a Daubert hearing before excluding Gleason.  This, the defendant argued, was an abuse of discretion, and warranted reconsideration. 

After conducting a telephonic hearing, the court concluded that it should hold a Daubert hearing.  The court noted, however, that the decision to hold such a hearing or not is within the court’s discretion.  Following the hearing, the court re-examined Gleason’s qualifications and opinions in light of the Third Circuit’s particular Daubert standards.  The court focused on Gleason’s qualifications, since it had previously excluded Gleason as unqualified to render the opinions expressed in his report.  Based upon the new information available to the court, it found that “Gleason has had extensive experience in the domestic and international coal and related industries and, therefore, will be permitted to testify as to the opinions in his report.”  The court noted that plaintiff’s disagreements with Gleason’s conclusions and opinions were proper topics for cross-examination and closing argument, but did not warrant outright exclusion. 

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, Alabama, 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 was selected as a Mid-South Super Lawyer 2006, 2007 (Arkansas, Mississippi and Tennessee) for General Litigation and Personal Injury Defense: Products. Mark can be reached at Watkins & Eager, PLLC, PO Box 650, Jackson Mississippi, ph. 601-965-1900 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. 601-965-1900 or by email at gcarner@watkinseager.com.