The Fourth Circuit continues to analyze and apply Daubert to determine the propriety of proposed expert testimony in a variety of factual scenarios, from the value of a syndicated television show, to the identification of a driver who sped away from a routine traffic stop.
Trademark Properties, Inc. v. A&E Television Networks, No. 2:06-cv-2195-CWH, 2008 U.S. Dist LEXIS 87731 (D.S.C. Oct. 28, 2008)
In this breach of contract case brought by Trademark Properties, Inc. and Richard C. Davis against A&E Television Networks (A&E), A&E brought a motion to exclude the testimony of the plaintiffs’ damages expert, Mark Halloran. Id. at *2-3. The plaintiffs alleged that they were entitled to half of the net revenues that A&E had earned from the television show “Flip This House”. Id. at *3.
Mr. Halloran was asked to testify to the amount of the damages to which the plaintiffs were entitled. Id. However, Mr. Halloran did not run an audit of A&E’s revenues, but merely took the numbers produced by A&E during discovery to be true. Id. Further, as the plaintiffs asserted that they were owed 50% of the net revenues, Mr. Halloran divided the figure of the net revenues produced by A&E by two. The court held as a threshold matter that this testimony did not provide “relevant evidence” under FRE 401, as the testimony is “not necessary to prove how to divide in half a sum that is not disputed by the parties.” Id. at *4. Mr. Halloran’s expert report, which contained this simple calculation, was held inadmissible as expert testimony as the report was of no assistance to a common jury. Id.
With respect to a supplemental expert report offered by Mr. Halloran, the court analyzed its admissibility under the Daubert principles. The supplemental report stated that Mr. Halloran’s conclusions in his expert report relied on a New York Times article which listed a number of television shows on Home & Garden Television (“HGTV”) and other networks. Id. at *5. Mr. Halloran then used the Internet to research the number of “seasons” each of these shows ran and added other “Home Sale/Improvement Based Reality Shows” to his list. Id. Mr. Halloran then eliminated from his list all shows that had aired fewer than four seasons, calculated the average number of seasons that the other shows ran, and used that number to project the number of seasons that “Flip This House” would run. Id. at *5-6
The court, applying the four Daubert factors, stated that there was no evidence that this methodology had been tested, no evidence that the methodology had been subjected to peer review and publication, no evidence regarding the methodology’s known rate of error, and no information regarding the acceptance of the methodology within the relevant community. Id. at *7-8. As the court determined that the methodology employed did not satisfy any of the four Daubert factors, the court ruled that the conclusions based on the methodology are not reliable, and therefore excluded the testimony on these additional grounds. Id. at *8.
Miller v. Mandrin Homes, Limited, No. 07-1285, 2009 U.S. App. LEXIS 264 (4th Cir. Jan. 8, 2009) (unpublished)
In this case decided by the Fourth Circuit, the court held that where expert testimony only raised a scientific possibility, rather than a probability, on an element essential to the appellant’s claim, summary judgment was proper. Id. at *11 Here, the plaintiffs brought suit alleging that the house they purchased sat on a lot contaminated by toxic substances. Id. at *1. The plaintiffs asserted that Mandrin Homes, Ltd. violated the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Id. at *4.
The plaintiffs’ expert, Dr. Lorne Everett, testified in his expert report that photos revealed significant land disturbances between 1952 and 1957 in the surrounding area “consistent with” a dump or landfill. Id. at *3. He stated that the detection of certain compounds in the water from the sump at the property was “indicative of groundwater contamination under the property.” Id.
In the face of the defendants’ evidence that there was no groundwater contamination, the district court granted summary judgment, stating that the plaintiffs did not present evidence showing a triable issue of fact as to contamination. Id. at *4.
The district court held, and the Fourth Circuit agreed, that Dr. Everett’s testimony was insufficient to establish a prima facie CERCLA case. Id. at *6. The court held that while a trial court must decide whether an expert’s testimony is admissible under Daubert, if such testimony meets the Daubert standards, the question remains whether the evidence creates a genuine issue of material fact. Id. at *6-7. The court stated that a fair reading of the district court’s opinion demonstrated that taken at face value, Dr. Everett’s testimony was insufficient to raise a triable issue of fact. Id. at *8. Dr. Everett’s testimony was speculative as to the existence of contamination. Id. at *9. The court stated that even if such claims were admissible under Daubert, the mere possibility of contamination was not enough to raise a triable issue of fact. Id. at *9-10. Because Dr. Everett did not testify that it was his scientific opinion that groundwater contamination actually existed, as opposed to an indication it may have existed, the court found that summary judgment was properly granted. Id. at *10-11.
United States v. White, No. 07-4946, 2009 U.S. App. LEXIS 1717 (4th Cir. Jan. 29, 2009) (unpublished)
In this traffic stop arrest case, the Fourth Circuit upheld the district court’s denial of expert testimony pertaining to the reliability of eyewitness identification. Id. at *9. Here, White had been pulled over by a Fort Lee Policy Officer. Id. at *1. The officer shined his high beam headlights into the vehicle and questioned White. Id. at *2. The traffic stop ended after White sped away; the entire traffic stop lasted between eight to ten minutes, during which time the officer was approximately one and one-half to two feet from the driver, and was focused on the driver’s face. Id.
The officer subsequently learned the car had been stolen, that an arrest warrant had been issued for White. Upon being presented with a photo of White from the Chesterfield Police Department, the officer stated he “knew with 100% certainty” that White was the driver of the vehicle. Id.
Almost two months after the initial traffic stop, the officer initiated a traffic stop of another vehicle, and upon approaching, recognized White as the driver. After White confirmed his identity, the officer directed White to exit the vehicle, and placed him under arrest. Id. at *3.
Prior to trial, White filed a motion to suppress the officer’s identification of him, which the district court denied. Id. at *4. At the Daubert hearing, White presented testimony of Brian Cutler, Ph.D. Cutler explained that he would testify to four factors that may have impacted the officer’s identification of White as the driver from the first traffic stop. Id. Specifically, Cutler averred that “cross-race recognition”, the mug shot recognition effect, the confidence and accuracy correlation, and the nature of the officer’s initial identification of White might have impacted the identification. Id. Cutler cited the research supporting these factors and their general acceptability in the scientific community. Id. at *4-5.
The district court denied White’s Daubert motion, concluding that while Cutler’s proffered testimony satisfied the first prong of Daubert as “scientific knowledge,” it failed on the second prong -- that it would assist the trier of fact in understanding a fact in issue. Id. at *5.
The Fourth Circuit agreed with the district court’s findings. Because Cutler’s own testimony reduced the potential applicability of the cross-race recognition theory due to the length of the initial traffic stop, the Fourth Circuit agreed with the district court that this issue was inadmissible. Id. at *8. The Fourth Circuit also agreed that testimony pertaining to the mug shot recognition was within the jurors’ common knowledge, and thus would not be helpful. Id. at *9. Finally, the Fourth Circuit agreed that expert testimony on the deficiencies in the use of a single photograph “show-up” was unnecessary because defense counsel could elicit the deficiencies in this method of identification through cross-examination.
Based on these findings, the court ruled that the district court’s decision to deny the Daubert motion did not constitute an abuse of discretion, and therefore did not constitute reversible error.
Michael Hession and William Newmark can be contacted at Clyde & Co US LLP, 101 Second Street, 24th Floor, San Francisco, CA 94105, (415) 365-9800, (415) 365-9801 (facsimile), Michael.Hession@clydeco.us.
