Earlier this year, the Ninth Circuit decided a case that appears likely to have a dangerous impact on a range of defense litigation practice areas that involve statistics-based expert testimony. The opinion states that statistical models can ignore obviously important explanatory variables and still be deemed reliable and admissible. In particular, it says that a regression study of promotions that fails to include a measure of the applicant’s ability is reliable and admissible. Obrey v. Johnson, 400 F.3d 691 (9th Cir. 2005).

One of the more instructive Daubert opinions in the First Circuit this year focuses on the sufficiency of an expert’s qualifications to render an opinion. In that case, Alvarez v. R.J. Reynolds Tobacco Co., Inc., 405 F3d 36 (1st Cir. 2005), the plaintiffs sought to recover under various theories for the smoking-related death of Mr. Francisco Lopez. The defendant moved for summary judgment arguing among other things that the plaintiffs could not establish that an ordinary consumer in the position of the decedent was unaware of the dangers of smoking. Id. at 39. In support of that position, the defendant relied on a lengthy, detailed affidavit from a highly qualified history professor with nearly 20 years teaching experience. Id. at 40-41.

An often encountered hazard in expert testimony is the expert’s failure to account for other likely causes of a plaintiff’s injury. The Second Circuit’s most recent pronouncement on the admissibility of expert testimony in Wills v. Amerada Hess Corp., 379 F.3d 32 (2d Cir. 2004), cert. denied, 126 S. Ct. 355 (2005), addresses this problem. Wills is a Jones Act suit in which the plaintiff claimed that the cancer death of her husband, a seaman, was caused by toxic emissions aboard his vessel. The plaintiff argued that because the burden of proof on causation was relaxed in Jones Act cases, Daubert did not apply to her expert’s testimony. In rejecting that argument the court held that the “standards for determining the reliability and credibility of expert testimony are not altered” by the relaxed burden on causation.

In the past year the Third Circuit Court of Appeals has revisited several Daubert issues and reaffirmed its prior stances on the admissibility of expert testimony. The Court’s recent opinions remain focused on the primary concerns found in Daubert: (1) qualification; (2) reliability; and (3) fit. Elliot v. Kiesewetter, 112 Fed. Appx. 821, 824 (3d Cir. 2004); see also U.S. v. Trala, 386 F.3d 536, 542 (3d Cir. 2004); U.S. v. Mitchell, 365 F.3d 215, 234 (3d Cir.), cert. denied, 125 S. Ct. 446 (2004).

The Fourth Circuit Court of Appeals has addressed Daubert issues in several recent decisions. In those opinions the court’s focus was primarily on the classic concerns of Daubert: (1) reliability; (2) qualification; and (3) relevance. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248 (4th Cir. 2005); U.S. v. Ricketts, 141 Fed. Appx. 93 (4th Cir. 2005); Burns v. Anderson, 123 Fed. Appx. 543 (4th Cir. 2004); Brown v. Ryan’s Family Steak Houses, Inc., 113 Fed. Appx. 512 (4th Cir. 2004).

On December 15, 2004, the Fifth Circuit Court of Appeals affirmed the lower court’s dismissal of a design defect case where the plaintiff’s expert’s testimony concerning the design of a forklift was untested, unreliable, and lacked specificity.  Guy v. Crown Equipment Corp., 394 F.3d 320 (5th Cir. 2004).

Recent decisions by the Sixth Circuit Court of Appeals squarely reaffirm the trial court’s discretion in its Daubert gatekeeping role. Of the eight decisions in the past year to address challenges to the trial court’s admission or exclusion of expert testimony, the Court affirmed the trial court’s rulings in all but one case. Even in that case, the Court found the admission of unreliable expert testimony to be harmless error and affirmed the underlying judgment.

One of the more interesting recent decisions out of the Seventh Circuit is Fuesting v. Zimmer, Inc., 421 F.3d 528 (7^th Cir. 2005).  In that case the Seventh Circuit reversed a plaintiff’s judgment in a products liability case on the grounds that the testimony of the plaintiff’s expert on the issues of the product’s defective condition and causation was unreliable.  The central issue was whether the prosthetic knee that the plaintiff received in his total knee replacement was defectively designed because of the method in which it was sterilized at the time of manufacture.  Id. at 531.

In the past year the Eighth Circuit has further explored and defined the contours of the Daubert test for the admissibility of expert opinion testimony.  While the court has not been called on to address an issue that required a reappraisal of the basic rules, it has reviewed district courts’ application of the rules in determining whether particular types of testimony met the test. In evaluating whether a district court has abused its discretion in admitting or excluding such evidence, the court appears to have focused on whether the testimony has met the basic requirements of reliability and relevance in the federal rules, while leaving actual application of the Daubert factors to the considerable discretion of the district courts.

The Ninth Circuit Court of Appeals has revisited Daubert on a number of issues and in two recent cases, the Court of Appeals and the United States District Court for Hawaii refused to apply the Daubert standard to evidence used to support legislative action.

In Norris v. Baxter Healthcare Corp., 397 F.3d 878 (10th Cir. 2005), the Tenth Circuit confronted a classic Daubert issue and reaffirmed the court’s “gatekeeper” role with respect to medical expert testimony.  In Norris, a plaintiff sued for injuries allegedly sustained from breast implants that leaked.  Norris, 397 F.3d at 879.  The Tenth Circuit applied Daubert to determine whether the scientific methodology used by plaintiff’s expert witnesses was reliable, and thus, admissible.  Id. at 884.

The Eleventh Circuit Court of Appeals rendered numerous opinions this year on Daubert issues. In the majority of decisions involving the admissibility of expert testimony under Daubert, the proffered testimony was stricken or disallowed by the Court. The following is a brief summary of three of the more interesting of these opinions to date in 2005.

As a certified public accountant who has served as an expert witness in numerous cases during the past ten years, I’ve observed both good and bad practices followed by attorneys engaging experts. Often, the difference between good and bad practices in preparing and working with your expert can mean the difference between winning and losing the case. You know the good results – the expert is knowledgeable, has sufficient and appropriate background, is well-groomed, is conflict-free, and is involved early on. You also may have experienced some of the bad – the expert is unprepared, is pompous, executes poorly, isn’t aware of the role he needs to play, and looks as though he’s just jumped out of bed.

Would you like to have access to a database that catalogs experts whose testimony has been the subject of successful Daubert challenges?  The Daubert Newsletter is going to be creating such a database.  We want to know about your Daubert successes – regardless of whether the results are published and regardless of when the ruling came down.  All newly identified experts will be listed in next issue of the Daubert Newsletter with links to additional related information (some examples are below) – and you will have the chance to do some shameless bragging.  So if you have a Daubert victory send us an e-mail at pkenny@armstrongteasdale.com.

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