Daubert Motions:Challenging Expert Opinions

Presented By:G. Brian Jackson

Butler Snow

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Daubert Motions:Challenging Expert Opinions

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Prepared By:G. Brian Jackson

Butler Snow

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DAUBERT MOTIONS:CHALLENGING EXPERT

OPINIONS

Brian JacksonButler, Snow, O’Mara, Stevens & Cannada, PLLC

Nashville, TN

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FEDERAL RULE OF EVIDENCE 702

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise IF…..”

FEDERAL RULE OF EVIDENCE 702 (CONT’D)

• The testimony is based upon sufficient facts or data,

• The testimony is the product of reliable principles and methods, and

• The witness has applied the principles and methods reliably to the facts of the case.

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FEDERAL RULE OF EVIDENCE 702 (CONT’D)

• Rule 702 was amended in 2000 to better reflect the reasoning of Daubert and its progeny

• The key concept under both the Rule and the case law is reliability

THE DAUBERT REVOLUTION

• Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)• Abandoned the “general acceptance” or Frye test, (Frye v. United States,

293 F. 1013 (D.C. Cir. 1923)• Turned to the Federal Rules of Evidence as a guide• Would the proffered testimony “assist” the trier of fact

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THE DAUBERT REVOLUTION

• Was it a really a revolution?

• Some courts say no

• “The case did not otherwise work a sea change over federal evidence law.” U.S. v. 14.38 Acres of Land , 80 F.3d 1074 (5th Cir. 1996)

• But if nothing has changed why is everything so different?

THE DAUBERT REVOLUTION

• At the very least, Daubert gave form and substance (and controlling legal authority) to concepts of admissibility that were percolating in the federal case law for many years

• Above all emphasized the trial court’s role as gatekeeper of all evidence, including expert evidence

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DAUBERT HOLDING

• Expert evidence—like all evidence—must be relevant.

• A fairly low standard.

• However, expert evidence also requires a second layer of evaluation by the trial court: is it the product of reliable methods?

DAUBERT FACTORS

• The Daubert Court set forth a list of factors that may be pertinent to evaluating the reliability of evidence

• An important caveat: this list of factors is non-exclusive.

• Also, other factors may apply!

• Not a simplistic checklist

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DAUBERT FACTORS

• Has the evidence been tested and by what methodology was it tested?

• Has the evidence been subjected to peer review or publication?

• Is a potential rate of error known?

• Is the methodology of the witness generally accepted in the pertinent community of scientists or similar experts?

ADDITIONAL FACTORS

Additions to the Supreme Court’s “non-exclusive” list—may vary by jurisdiction

• Was the evidence developed independently or solely for purposes of litigation? (From Daubert II)

• Has the expert adequately accounted for obvious alternative explanations?• Is the expert being as careful as she would be in her regular professional

work?

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UNDERSTANDING THE FOUNDATION

OF DAUBERT

• The Court was looking to science more than “law”

• Cannot understand how Daubert works without understanding the scientific method

THE SCIENTIFIC METHOD

“Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.”

---Daubert at 593.

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THE SCIENTIFIC METHOD

• Concept of Hypothesis Testing lies at core of Daubert and all of its factors

• All good science requires testing—as defined by scientific method

• All good science requires that the potential rate of error be known

• Peer review is designed to ensure that scientific method is followed

DAUBERT’S PROGENY

• Kumho Tire v. Carmichael, 526 U.S. 137 (1999)

• Daubert’s “general holding” that trial courts must serve as gatekeepers applies to all expert testimony, whether strictly scientific or not.

• Any evidence based on “technical” or “other specialized” knowledge must be scrutinized.

• Includes applied sciences such as engineering

• Important to determine whether evidence should be analyzed under Daubert or Kumho Tire

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• Daubert focused on the methodology and principles by which opinions are generated, and not on the opinions themselves. Courts were to examine the methodological process and not the conclusions reached.

• But “conclusions and methodology are not entirely distinct from one another” General Electric Co. v. Joiner, 522 U.S. 136 (1997)

• Suspect conclusions may be sign of misapplied methodology

The “courtroom is not the place for scientific guesswork….law lags science; it does not lead it.”

--Rosen v. Ciba-Geigy Corp.

78 F.3d 316 (7th Cir. 2000)

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THE DAUBERT REVOLUTION

• Cottage industry of federal litigation

• Dozens of cases annually from the Courts of Appeal

• Growing body of federal case law

DAUBERT IN THE STATE COURTS

• A majority of states have now adopted some version of the Daubert principles

• Include: Alabama (legislatively adopted in 2011), Alaska (adopted Daubert in 1999 but rejected Kumho Tire in 2005), Arizona, Arkansas (2000), Connecticut (1997), Delaware (1993), District of Columbia, Georgia (legislatively adopted in 2005), Indiana (courts look to Daubert for non-binding guidance—1995) , Kentucky (1995), Louisiana (1993), Massachusetts (1994/2000), Michigan (2004); Mississippi (2003), Montana (1996—but only for introduction of novel scientific evidence), Nebraska (2001), New Hampshire (2002), New Jersey (some cases), New Mexico (1993), Ohio (1998), Oklahoma (2003—applies only to novel scientific evidence), Oregon (1995), Rhode Island (1996), South Carolina (not expressly adopted, but standard “very similar”--1999), South Dakota (1994), Tennessee (1997), Texas (1995), Vermont (1993), West Virginia (1993), Wisconsin (legislatively adopted in 2011), Wyoming (1999).

• Notable holdouts or jurisdictions that have expressly rejected Daubert include California, Florida, Illinois, New York and Pennsylvania.

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THE NUTS AND BOLTS

• Daubert motion practice: an increasingly common, even routine, part of federal practice

• Especially common in toxic tort cases, pharmaceutical products liability cases, certain other products liability cases

• Planning for Daubert challenge should begin with initial case management order: expert disclosure deadlines are essential

THE NUTS AND BOLTS

• Proponent of expert evidence has the burden of establishing admissibility under Daubert

• If possible, disclosures should be timed to allow for evaluation of reports, depositions of experts and preparation of responsive reports that directly engage the scientific issues

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DAUBERT HEARING

• Courts may allow live testimony—the best means by which the issues can be explored

• E.g., In re Phenylpropanolamine Products Liability Litigation, 289 F. Supp. 2d 1230 (W.D. Wash. 2003) (three days of live testimony from numerous experts); In re Ephedra Product Liability Litigation, 393 F. Supp. 2d 181 (S.D.N.Y. 2005) (same)

• Especially critical in mass tort cases—e.g. Silicone Breast Implant cases

GENERAL AND SPECIFIC CAUSATION

• Critical Daubert inquiry may involve the question of general or “generic” causation

• Arises in any case of toxic exposure (including pharmaceutical liability cases)—issue is whether a substance is capable of causing a particular injury or condition in the general population

• Efforts to avoid proving generic causation by reliance on “differential diagnosis” have generally been rejected

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CATEGORIES OF EVIDENCE

REGARDING GENERIC CAUSATION

• Controlled epidemiological studies

• Case reports

• Analogy to other drugs or substances

• Animal studies

• Medical literature (e.g., textbooks)

• Mechanism theories

DAUBERT IN THE COURTS: SOME

ISSUES

• Controlled studies are the “gold standard” of proof for generic causation

• But not always required: “to hold the opinions of scientists inadmissible unless backed by statistically significant results from tightly controlled (and very expensive) experiments would set a separate, higher standard for scientists than for other witnesses with specialized knowledge.” Ephedra, 393 F. Supp. 2d 181

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DAUBERT IN THE COURTS: SOME

ISSUES

Same court, different judge may yield different result: In re Rezulin Products Liability Litigation, 369 F. Supp. 2d 398 (S.D.N.Y. 2005) (excluding evidence that Rezulin caused liver injury because no existing peer-reviewed studies provided proof of such causation)

ON THE OTHER HAND….

• Yet another Judge of the same court has cautioned against requiring too high a “level of exactitude” for new toxic torts for which medical literature is not well developed. Green v. McAllister Bros., 2005 WL 74264 (S.D.N.Y. 2005) (dust from World Trade Center collapse

• Such a level of scientific rigor “would likely sound the death knell” for the plaintiff’s claim

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WHAT TO MAKE OF THE DIFFERENT

RESULTS

• All a matter of judicial temperment and bias?

• Not really--at least we hope not!

• Really just underscores the complexity and the case-specific nature of the Daubert inquiry

• Categorical proclamations are rarely helpful

• However, the trial court has immense power—abuse of discretion standard• Courts have sometimes appointed Special Masters or court-appointed

experts to assist them in their task• Rule 706 of the Federal Rules of Evidence (court-appointed experts); Rule

53 of the Rules of Civil Procedure (Special Masters) (rare)

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LESSONS FROM OTHER COUNTRIES

• European courts generally do not allow partisan experts.

• Common law countries (e.g., England and Australia) have traditionally allowed.

• Recently common law jurisdictions have adopted changes designed to limit role of partisan experts.

“HOT TUBBING”

• Australian Reform called “Hot Tubbing,” or (less colorfully) “Concurrent Evidence”

• Experts are still chosen by the parties but they testify together at trial—discussing case, asking one another questions and answering inquiries from judge and lawyers.

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BRITISH REFORMS

Similarly, British courts have adopted reforms including placing experts under control of court, requiring a single expert in many cases and requiring experts to certify that they are independent.

SUBJECTS OF EXPERT TESTIMONY

• Nature or Extent of Injury/Damage: 68%

• Cause of Injury or Damage: 63%

• Amount of Recovery for Plaintiff: 44%

• Reasonableness of Party’s Actions: 34%

• Industry Standards: 30%

• Professional Standard of Care: 25%

• Design of Product/Device/Structure: 25%(1998 Study)

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ECONOMICS OF A DAUBERT

CHALLENGE

• Interesting analysis of the economics of “shakedown litigation” developed by Stephen Mahle

• Basic Concept: if an expert can put a big enough number on the board, then even a small chance that the plaintiff will prevail may result in a large settlement

AN EXAMPLE

• A basically specious claim that a plaintiff or group of plaintiffs is owed $100 million

• If there is only a 10% chance of prevailing, risk aversion would suggest that the case has a potential settlement value of $10 million

• If the case can be litigated by the plaintiff for less than $10 million, there is a financial upside or incentive (or, in more technical terms, “a positive net present value”)

• “Shakedown” or “junk litigation model”

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• Enter Daubert motion• If the motion to exclude has only a 10% chance of success, then if it can be

accomplished for less than $1 million, there is a positive net present value to its undertaking

• Almost always better than 10% odds and almost always can be accomplished for far less than $1 million!

What Mahle calls “the beautiful intellectual irony” is that the same financial analysis that incentivizes junk litigation also incentivizes the Daubertmotions to destroy the litigation

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LOOKING FORWARD

• Ramifications of Daubert continue to be experienced in the trial courts

• Future holds exciting opportunities for lawyers who understand its principles

• Brush up on scientific method and, most important, understand the analytical framework through which all evidence must be evaluated

QUESTIONS AND COMMENTS

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Notes