I recently had an opportunity to sit in on a Daubert seminar for plaintiffs’ attorneys.  That was an eye-opener.

For instance, one of the speakers declared that defendants generally are more in need of junk science than are plaintiffs.  He offered no basis for that opinion.  He also was not troubled by the fact that, as he acknowledged, the vast majority of Daubert motions seem to be filed on behalf of defendants.  That, he argued, simply shows that for far too long plaintiffs have been willing to “play defense” on Daubert issues.

Products are often identified as the origin and cause of fires.  In product liability litigation, does the plaintiff establish a prima facie case of liability if plaintiff merely establishes that the product was the origin and cause of the fire?  No.  Much more is required.  For the manufacturer to be liable, the plaintiff must prove that the product was defective and the defect caused the fire. Experts who merely testify that the product was the origin and cause of the fire, without testifying that the product was defective and how that defect caused the fire, will likely face exclusion.  Likewise, testimony that the product could have caused the fire, without reliable evidence that the product was in fact the origin and cause of the fire, is inadmissible.

Between November 2005 and mid-February 2006, the First Circuit did not issue any decisions on Daubert.  However, four decisions from the Massachusetts and Maine district courts look destined for Boston.  While two of these cases arise from criminal matters, all four provide further guidance on how courts in this Circuit are dealing with Daubert in new and different contexts.

Carbonless Copy Paper:  Three plaintiffs in Ellis v. Appleton Papers, Inc., 2006 WL 346417 (N.D.N.Y. Feb. 14, 2006) (J. Mordue) alleged that they developed toxic encephalopathy and/or building-related illness after using formaldehyde-containing CCP during the course of their employment at the Tompkins County Department of Social Services (“DSS”).  They attempted to call a physician and a toxicologist to support their claims.  The defendants moved to preclude the expert testimony on the grounds that the opinions offered by these experts did not reflect reliable, scientific knowledge derived by scientific method, and that the experts did not properly apply their scientific theories to the facts of the case.

In the Third Circuit the past few months have been marked by many rulings on Daubert issues at the district court level, and one significant ruling on such issues at the appellate level. 

In the appellate case, the Third Circuit Court of Appeals reviewed a district court’s decision that excluded the testimony of plaintiff’s fire origin expert, a decision that eventually resulted in the district court granting summary judgment in favor of the defendants.  State Farm Fire & Casualty Co. v. Holmes Products, 2006 U.S. App. LEXIS 2370 (3d Cir. Jan. 31, 2006) (unpublished opinion).  In Holmes Products, the plaintiff sued the distributor and seller of a halogen floor lamp.  The plaintiff alleged that the lamp, which did not have a wire or glass guard covering, was defective and caused a house fire when cotton drapes came into contact with the lamp’s bulb. 

Over the past few months, the Fourth Circuit Court of Appeals has addressed several Daubert issues, continued to provide guidance on the admissibility of expert testimony, and affirmed its prior positions.  The court’s decisions focused primarily on the major concerns of Daubert including relevance and reliability.  Bryte v. American Household, Inc., 429 F.3d 469 (4th Cir. 2005), petition for cert. filed, (U.S. Mar. 6, 2006); Testerman v. Ridell, Inc., 2006 WL 41193 (4th Cir. Jan. 6, 2006) (unpublished).

In addition to considering whether an expert is qualified and is asserting opinions that are based on good science, one must consider whether the expert has reviewed adequate factual information to support his opinions.  This was discussed by the court in McNabney v. Laboratory Corp. of America, 153 Fed. Appx. 293 (5^th Cir. 2005) (unpublished opinion).  Ms. McNabney went to a lab to have blood drawn and experienced an extravasation which allegedly caused reflex sympathetic dystrophy (RSD).

In the lone Daubert decision handed down by the Sixth Circuit since our last report, the court yet again reaffirmed the trial court’s discretion in its Daubert gatekeeping role.  In Brown v. Raymond Corp., 432 F.3d 640 (6th Cir. 2005), the court addressed the trial court’s exclusion of two expert witnesses proffered by the plaintiff, a forklift operator injured in an on-the-job collision.  The plaintiff sought to introduce the testimony of a lawyer and industrial engineer to opine on the unsafe design of the forklift.  He also sought to introduce the expert testimony of a forklift operator who would testify that the warnings provided by the manufacturer were insufficient.  The trial court excluded both, finding neither opinion reliable.  The Sixth Circuit affirmed, noting that the industrial engineer/attorney “had no expertise in forklifts” and “had no alternative design to offer that would have eliminated the perceived safety hazard.” 

Courts in the Seventh Circuit have addressed Daubert issues in a number of contexts over the last few months.  One of the more interesting decisions is Kempner Mobile Electronics, Inc. v. Southwestern Bell Mobile Systems, 428 F.3d 706 (7^th Cir. 2005).  There the Seventh Circuit affirmed the district court’s exclusion of expert testimony on the issue of damages.  Kempner was the seller of various telephone products and services.  Kempner and Cingular had numerous commercial dealings over the years.  In one of those deals Cingular allegedly represented that Kempner would receive certain prices.  Kempner claimed that it relied on this representation in choosing to decline a competing offer from Nextel.  According to Kempner, Cingular never intended to provide the promised prices.  The jury found in favor of Kempner on its fraud claim, but after an earlier appeal the case was remanded for a second trial on the issue of damages.

In November, the Eighth Circuit considered a challenge to the admission of expert testimony based upon Daubert and Fed. R. Evid. 702 in United States v. Cawthorn, 429 F.3d 793 (8th Cir. 2005).

In Cawthorn, the appellant had been convicted in the District Court of Nebraska for possession of crack cocaine with intent to distribute, based in part on testimony of the prosecution’s expert. While conceding that studies show that the U.S. money supply is contaminated with cocaine residue, the expert attempted to show that a positive result from the swab test on Cawthorn’s hand could not be attributed to mere casual contact with money (Cawthorn was carrying $1,380 at the time of arrest). The expert’s first test involved swabbing a money counter and the hands of bank tellers to check for cocaine residue.

Two of the more interesting Daubert decisions recently handed down within the Ninth Circuit are McDonald v. Sun Oil Co., __ F. Supp. 2d __, 2006 WL 696316 (D. Or. Mar. 14, 2006) and Living Designs, Inc. v. E.I. DuPont De Nemours & Co., 431 F.3d 353 (9^th Cir. 2005).

McDonald v. Sun Oil Co., __ F. Supp. 2d __, 2006 WL 696316 (D. Or. Mar. 14, 2006), involved a real estate transaction in which the subject property allegedly was contaminated with mercury.  The parties filed a bevy of motions including one motion in limine for sanctions to remedy the supposed spoliation of evidence.  The basis for this motion was the failure of the defendants to provide plaintiffs with copies of some of the defense experts’ drafts and notes. 

The Tenth Circuit Court of Appeals issued an opinion on January 20, 2006, affirming the exclusion of expert testimony on whether the defendant was prone “to give false confessions based on his overly compliant nature and tendency to acquiesce to the wishes of others,” including the federal agent who obtained the defendant’s confession.  See United States v. Hebah, 2006 WL 148275 at *1 (10th Cir. Jan. 20, 2006) (unpublished).  The issue in Hebah was whether the trial court properly exercised its “gatekeeper” role pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

In the past six months there has been relatively little Daubert case law activity in the Eleventh Circuit.  Two recent noteworthy cases from that circuit are Williams v. Consolidated City of Jacksonville, 2006 WL 305916 (M.D. Fla. Feb. 8, 2006) and Nelson v. Freightliner, LLC, 154 Fed. Appx. 98 (11th Cir. 2005).

In Williams, four white, male plaintiffs who were lieutenants in the city fire department alleged that the city had discriminated against them on the basis of sex and race.  The plaintiff’s expert psychiatrist interviewed the wife of one of the plaintiffs who had died about her observations of her husband subsequent to the alleged discrimination.

Fire experts have lived a charmed life for the past thirty years [the time I have been involved in fire investigation].  The only criteria for any person to qualify as an expert on fire investigation, and the associated science that must be considered, was to state that one worked for a public agency, such as a police or fire department, or had attended some training schools, such as untested seminars and conferences.  The first time I qualified as an expert in 1974 while working as a police officer and fire fighter, I was terrified that I would not be able to answer questions associated with my craft.  However, I was not asked any such questions.  The opposing attorney did object to my testimony since I had never qualified before, but the judge overruled the objection stating, “[i]t is for the jury.  It goes to the weight of the evidence.”  I don’t pretend to know why such a comment would overcome a legal challenge, but I was overjoyed that it did.

An Introduction to the Daubert Tutorials

The Daubert Tutorials are a series of a dozen “lessons” that begin with the original Daubert opinion and work systematically through the essential Daubert progeny.

They discuss the law that governs expert testimony in federal courts, and the science that informs that law.  Eschewing technical lingo, the scientific notions are developed in the language of lawyers, and while the discussions will not always be elementary, the science discussed here will always be about novel strategies for prevailing in complex litigation.