Recently I gave a Daubert presentation at an international symposium for fire investigators.  As might be expected, the attendees included some vendors, businesses, and a small cadre of attorneys from around the country and oversees.  However, the vast majority were highly trained, skilled fire investigators from around the world, steeped in one or more disciplines relevant to the subject area.  These folks already knew about Daubert . . . and about Kuhmo and about a host of Daubert decisions relevant to their respective areas of expertise.  They had learned it in the trenches, and they had some shrewd insights for me on the subject.
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Expert witnesses have testified on insurance issues for a long time.  For example, in Farmers Insurance Exchange v. Schropp, 222 Kan. 612, 621, 567 P.2d 1359, 1367 (1977), the Supreme Court of Kansas held that the record supported a jury verdict, and that the liability insurer acted negligently or in bad faith in settlement.  The Kansas Supreme Court noted “that, in addition to the evidence outlined above, expert testimony was offered on behalf of Schropp and received by the court; this, too, was supportive of the finding.”  More recently, in a case involving issues of the reasonableness of a settlement made by the policyholder and the injured claimant, a Florida intermediate appellate court noted that “proof of reasonableness is ordinarily established through use of expert witnesses . . .”  Chomat v. Northern Insurance Co. of New York, 919 So.2d 535, 538 (Fla.Dist.Ct.App. 2006).
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This is the second[1] in a series of ten Daubert Tutorials. The series parses the Daubert line of cases, paying special attention to explaining and translating the sometimes opaque scientific language that Daubert and its progeny import into the law. The most important of these progeny is Kumho Tire and its extension of Daubert’s core holding to govern all expert testimony proffered in federal court. This second tutorial discusses a key aspect of Kumho Tire’s application, explaining the difference between the scientific testimony that Daubert addresses and the nonscientific testimony that Kumho Tire brings under the Daubert rubric.
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In Piché v. Nugent, __ F. Supp. 2d __, 2006 WL 1648943 (D. Me. June 14, 2006), the Daubert issue arose in the context of the defendants’ attempt to assert a comparative fault defense in a motorcycle accident case.  Mr. Piché and his wife Ms. Laprise were riding a motorcycle without wearing helmets when the defendant fell asleep and struck their motorcycle.  Ms. Laprise, the passenger, died five days after the accident, while Mr. Piché suffered only minor injuries.  The Daubert issue arose when the defendants tried to present expert testimony on the issue of whether the passenger’s failure to wear a motorcycle helmet contributed to her brain injury and death.
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Claim Construction:  In Sanders v. Mount Sinai School of Medicine, 2005 WL 2242151 (S.D.N.Y. Sept. 13, 2005), plaintiffs patented their method of treating eight separate medical conditions with botulinum toxin.  They subsequently assigned their rights under the patent to their employer, Mount Sinai Hospital, pursuant to the terms of their employment contracts.  According to their agreement, the Mount Sinai was required to pay the plaintiffs a percentage of the revenue derived from the botulinum toxin.  Mount Sinai’s right to the patent was challenged by a drug manufacturer, Allergan, which claimed it had priority with respect to the treatment of two of the eight diseases:  hyperhydrosis and rhinorrhea.
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While the substance of Rule 702 and Daubert analyses are often of greater interest than the procedural aspects of presenting expert testimony, recent decisions from district courts in the Third Circuit remind us of the effects that procedural practice and posture can have on the ultimate admissibility of expert testimony.
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Since March, courts of the Fourth Circuit have continued to apply the traditional Daubert standards in three notable decisions.  In these decisions, which include a lease dispute, a personal injury action and an unfair competition action, the courts focused primarily on the major Daubert concerns of relevance and reliability.  Safeway v. Sugarloaf Partnership, LLC, 423 F. Supp. 2d 531 (D. Md. 2006); Eggleston v. Wal-Mart Stores East, LP, 2006 WL 1050654 (E.D. Va. 2006);  Pediamed Pharmaceuticals, Inc. v. Breckenridge Pharmaceutical, Inc., 419 F. Supp. 2d 715 (D. Md. 2006).
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Dr. Gary Nelson, a safety engineer and manager, offered opinions in a slip and fall case where a customer slipped on liquid that leaked from a bottle of cleaning fluid.  Lane v. Target Corp. 2006 WL 870805 (S.D. Tex. April 3, 2006).  Dr. Nelson offered two basic opinions: first, that the store failed to have a policy and practice to secure a spill area immediately before obtaining cleaning supplies, and second, that a product display that can be contacted by shopping carts in a high traffic area should have a barrier around it or it amounts to an unsafe condition. 
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On May 11, 2006, the Sixth Circuit decided Meridia Products Liability Litigation v. Abbott Laboratories, 447 F.3d 861 (6^th Cir. 2006).  In doing so, it underscored – yet again – the trial court’s gatekeeping role under Daubert by affirming the partial exclusion of a proffered medical expert and, in the process, summary judgment for the defense.
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There were several Daubert related decisions in the Seventh Circuit over the last couple of months, three of which are of particular interest.  One recent decision in the Seventh Circuit provides a useful demonstration that a valid Daubert challenge is only one of several tools available to the trial attorney for dealing with junk science.  Naeem v. McKesson Drug Co., 444 F.3d 593 (7^th Cir. 2006), involved a suit by a terminated employee (Naeem) against her employer (McKesson Drug Co.) and manager for sexual discrimination and intentional infliction of emotional distress.  The jury’s verdict was for the defendants on the sexual discrimination claim but for Naeem on the intentional infliction of emotional distress claim.
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In a recent decision by the federal district court for the Eastern District of Arkansas, the court focused on the extent of specialized knowledge necessary for expert testimony to be admissible under Daubert and Fed. R. Evid. 702.
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The Ninth Circuit has examined Daubert in a handful of cases and applied Daubert to different issues over the past several months. 
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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).
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In Leathers v. Pfizer, Inc., 233 F.R.D. 687 (N.D. Ga. 2006), the plaintiff alleged that the defendant drug manufacturer’s product, a statin drug used to control high cholesterol, caused permanent muscle pain and weakness.  The U.S. District Court for the Northern District of Georgia held that the plaintiff’s proffered expert was not excused from a Daubert analysis simply because he was the plaintiff’s treating physician.
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Although I’ve not yet seen it, I am convinced that somewhere out there is a magazine ad or perhaps a matchbook ad that leads with “Make big money now!  You too can be a claims handling expert.”  Over the years, I’ve been retained in hundreds of claims handling cases and in that capacity, have seen the work and qualifications of more than a hundred retained claims handling experts—some experienced and competent, some with little relevant experience, but competent, and some with neither attribute.  Countering the testimony of the qualified and competent experts is easy, just as it is easy to counter the testimony of the incompetent experts. 
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In Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), the Supreme Court overhauled the standards for admitting expert witness testimony in federal court by removing “junk science” from the courtroom and introducing a new reliability test for the permissibility of expert theory and technique.
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