You won your Daubert challenge, obtained summary judgment and your opponent gave up without an appeal.  That is a great outcome, but your client is still upset because without the junk testimony from your opponent’s expert your opponent might never have taken the case or at least would have taken a sensible position in early settlement talks.  Instead, thanks to your opponent’s expert, your client had to spend huge sums of money defending the case through summary judgment.  Of course, that is just part of the game.  But does it have to be?

Over the past thirty-five years, I have worked as an engineer, manager and executive on construction projects valued at approximately $20 billion, and have provided consulting and expert witness services on projects valued at an additional $15 billion. The closer I get to the end of my construction industry career, I feel an increasing desire to share the essence of my experiences with defense attorneys, so that they can benefit from the many valuable lessons learned on these projects. It is in this context that I am writing about the many and varied ways in which causation and damages "experts" have shot themselves in the foot, e.g., how they (and counsel) have screwed-up in prosecuting disputes.

Issue Spotting

The critical role of issue-spotting in litigation is as established as any proposition in the law.  The ability of scientifically trained Daubert counsel to spot issues that non-scientifically trained lawyers are not trained to identify is the first and most important reason that litigators, regardless of specialization and regardless of level of advocacy skill, should have Daubert counsel in matters that involve the testimony of experts.  In fact, the greater the skill of lead counsel and the greater the complexity of the matter, the greater is the value of the Daubert counsel.[1]

Since my last report on First Circuit Daubert case law, the Circuit has been relatively quiet.  Traditional Daubert concepts of “gatekeeper,” “reliability,” “methodology” and “assisting the trier of fact” continue to be the focus of the decisions.

On March 22, 2007, the United States District Court for the Northern District of New York issued a lengthy decision precluding Meyer R. Rosen, M.S., of InterCity Testing & Consulting from testifying as plaintiff’s expert in a product liability action involving the flammability of children’s clothing.  Topliff v. Wal-Mart Stores East, L.P., 2007 WL 911891 (N.D.N.Y. Mar. 22, 2007).  The court based its decision on a thorough review and rejection of Mr. Rosen’s qualifications and the methodology he used to form his opinions.  Mr. Rosen was qualified to testify on a few very discrete issues, but his inability to render an opinion on substantive matters resulted in an order granting the defendant summary judgment.

In the last quarter, district judges in the Third Circuit have, as one would expect, been quite busy applying Daubert standards in their courts.  While many of these decisions generally focus on the “trilogy of interests” (qualification, reliability, and fit) integral to Daubert analyses in the Third Circuit, some recent rulings have touched on interesting, narrow issues that apply to particular types of litigation.  This article focuses on two of those decisions, with an eye toward extrapolating lessons helpful to those who encounter Daubert issues on a regular basis in all types of cases.

Plaintiff’s expert testimony was legally insufficient in tread separation case

The Texas Supreme Court reversed and rendered judgment in favor of Cooper Tire & Rubber Company, after determining that plaintiff’s expert testimony was legally insufficient.  Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797 (Tex. 2006).  Plaintiff alleged a manufacturing defect in the tire on the plaintiff’s vehicle caused tread separation.  Plaintiff relied on Richard Grogan to offer testimony that the tire failed because of contamination in the “skim stock,” wherein he asserted the skim stock was contaminated with hydrocarbon wax.  “Skim stock” is the rubber compound that coats the steels belts in tires and hold tires together.

The United States Court of Appeals for the Sixth Circuit recently affirmed a district court’s decision to permit two non-scientific experts to testify based on their experience.  The case is a good template for those proffering or challenging non-scientific experts based on their backgrounds and other technical experience.

While in recent opinions district courts within the Eighth Circuit for the most part addressed familiar Daubert issues and engaged in straightforward application of established rules, the appellate court addressed two issues of interest.

In a products liability case the wife of a man killed in a single-vehicle accident claimed that a defectively designed cruise control activator cable was responsible for his death.  The Eighth Circuit affirmed the decision of the district court to admit testimony of the defendant’s pharmacologist concerning the deceased’s blood alcohol level at the time of the accident, which opinion was based on test results of vitreous humors (fluid) drawn from the deceased’s eyes.  Olson v. Ford Motor Co., 2007 WL 913809 (8^th Cir. Mar. 28, 2007).

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This updated version of our bestselling 2004 edition is an indispensable resource for any defense trial attorney or in-house counsel who deals with expert testimony! The Daubert Compendium highlights the opinions of the United States Supreme Court and federal district and appellate courts that have discussed Daubert on a substantive basis. Written by leading defense attorneys, the Compendium includes case citations, factual summaries and key language, and covers these topics and more:

• Methodology
• Known or potential rate of error
• Peer review and publication
• General acceptance
• Reliability of foundation

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