Chapter 19 Challenging the Plaintiff’s Expert in the Post Daubert era

• Jurisdiction: New York

CHAPTER NINETEEN CHALLENGING THE PLAINTIFF’S EXPERT IN THE POST-DAUBERT ERA Neil A. Goldberg, Esq.
John P. Freedenberg, Esq.

I. INTRODUCTION

Another chapter was written in the Daubert ³³⁵⁸ gatekeeping era, when the Supreme Court assured products liability defendants and their counsel that the era would continue with its ruling in Weisgram v. Marley Co ³³⁵⁹ and its adoption of an amendment to Rule 702 of the Federal Rules of Evidence (FRE). In light of the enhanced viability that these developments and, more notably, Kumho Tire ³³⁶⁰ gave to Daubert, the defense attorney has a duty, and a method, to exclude unreliable expert testimony (sometimes referred to as “junk science”) from the products liability lawsuit. While different court rules determine the extent and availability of expert reports and information, the timing of their disclosure and even the applicability of the Daubert principles, an effective defense attorney is always thinking about challenging unreliable expert testimony. Even in those courts which do not apply the Daubert principles, and those, like New York state courts, that do not permit expert depositions, adherence to the strategies that flow from Daubert greatly advance the defendant’s position at trial

The exclusion of unreliable expert testimony can be accomplished at several stages during the course of litigation, including (1) a Daubert hearing, (2) a motion in limine, (3) at the time of trial and (4) even at the appellate level. The time to begin thinking about the exclusion of unreliable expert testimony is not at the close of discovery or on the eve of trial. It is at the very outset of the case. The central event in the defendant’s quest to exclude the unreliable plaintiff’s expert is the expert’s deposition. The preparation for, and conducting of, that deposition is the central focus of this chapter

II. THE DAUBERT ERA UNFOLDS

Prior to 1993, the admissibility of expert opinions in federal courts was governed by the “general acceptance” test first enunciated in Frye v. United States. ³³⁶¹ Under Frye, an expert’s opinion usually was permitted into evidence if it enjoyed the support of a “substantial section of the scientific community.”

The Daubert era dawned with the Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. ³³⁶² Jason Daubert and Eric Schuller, two minor children, were born with serious birth defects. ³³⁶³ They and their parents sued the defendant, claiming that the birth defects had been caused by the mothers’ ingestion of Bendectin, an anti-nausea drug marketed by the defendant. ³³⁶⁴ Eight experts supported the plaintiffs’ claim that Bendectin can cause birth defects. ³³⁶⁵ The experts’ conclusions were based upon “in vitro” (test tube) and “in vivo” (live, i.e., animal) studies that found a link between Bendectin and malformations; pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects; and “reanalysis” of previously published epidemiological (human statistical) studies. ³³⁶⁶

The plaintiffs’ experts’ conclusions were offered in response to the defendant’s motion for summary judgment. ³³⁶⁷ The defendant supported its motion with an affidavit from Dr. Steven H. Lamm, a physician and epidemiologist. ³³⁶⁸ Dr. Lamm reviewed all the available literature on Bendectin and human birth defects, which consisted of more than 30 published studies ³³⁶⁹ and, based on his review, concluded that maternal use of Bendectin during the first trimester of pregnancy had not been shown to be a risk factor for human birth defects. ³³⁷⁰

In granting the defendant’s motion for summary judgment, the trial court held that the principle underlying the plaintiffs’ scientific evidence was not “sufficiently established to have general acceptance in the field to which it belongs.” ³³⁷¹ The Ninth Circuit Court of Appeals upheld the District Court’s ruling on the same grounds. ³³⁷²

The plaintiffs argued that the Frye test was displaced by the Federal Rules of Evidence; ³³⁷³ the Supreme Court agreed. ³³⁷⁴ The Supreme Court, however, cautioned that even though the Frye test had been displaced, under FRE 702 “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” ³³⁷⁵ In order to meet the standard of reliability under Rule 702, the subject of an expert’s testimony must be “scientific knowledge” or derived by the scientific method. ³³⁷⁶ In order to meet Rule 702’s standard of relevance, the evidence or testimony must “assist the trier of fact to understand the evidence or to determine a fact in issue.” ³³⁷⁷

The Supreme Court articulated several factors to assist the trial judge faced with a proffer of expert scientific testimony:

1. Whether the theory or technique can be (and has been) tested;

2. Whether the theory or technique has been subjected to peer review and publication;

3. The known or potential rate of error for the particular scientific technique;

4. The existence and maintenance of standards controlling the scientific technique’s operation; and

5. Whether the reasoning or methodology has gained “general acceptance” within the relevant scientific community.³³⁷⁸

In the years following the Daubert decision, many courts and plaintiffs’ attorneys circumvented its effectiveness by arguing or ruling against its application in certain instances. The rationale for not applying Daubert was that the expert was not really relying on science, but rather on his or her lifelong skills and experience (as if those qualities did not ultimately have their basis in science). This clever but intellectually baseless argument was put to rest by the Supreme Court in its decision in Kumho Tire, which held that the trial court’s gatekeeping obligation and the Daubert standards apply to all expert testimony ³³⁷⁹

In Kumho Tire, the right rear tire of a minivan driven by Patrick Carmichael blew out, causing the vehicle to overturn. ³³⁸⁰ One passenger in the vehicle died and others were injured. The plaintiffs brought suit against the tire maker and its distributor (collectively Kumho Tire), claiming that the tire that failed was defective. ³³⁸¹

Much of the plaintiff’s case rested upon the deposition testimony of Dennis Carlson, Jr., an expert in tire failure analysis, ³³⁸² who concluded that a defect in the manufacture or design of the tire had caused the tire’s tread to separate from its inner steel-belted carcass prior to the accident. ³³⁸³ Carlson’s conclusion that a defect caused the separation was based upon several disputed propositions: (1) if a separation is not caused by tire misuse known as “overdeflection,” then its cause is a tire defect; ³³⁸⁴ (2) if a tire has been subject to sufficient overdeflection to cause a separation, one should see certain symptoms—that is, tread wear on the tire’s shoulder that is greater than the tread wear along the tire’s center, signs of a “bead groove,” where the beads have been pushed too hard against the bead seat on the inside of the tire’s rim; and (3) sidewalls of the tire with physical signs of deterioration and/or marks on the tire’s rim flange. ³³⁸⁵ Carlson said that if he does not find at least two of the four physical signs mentioned above, he concludes that a manufacturing or design defect caused the separation. ³³⁸⁶

Upon inspection of the tire in question, Carlson noted that the tire showed greater wear on the shoulder than in the center, some signs of “bead groove,” discoloration, some marks on the rim flange, and inadequately filled puncture holes. ³³⁸⁷ Despite these findings, Carlson concluded that the tire did not bear at least two of the four overdeflection symptoms. ³³⁸⁸ Thus, the separation must have been caused by a defect. ³³⁸⁹

Kumho Tire moved to exclude Carlson’s testimony on the ground that his methodology was insufficient to meet the requirements of FRE 702. ³³⁹⁰ The trial court held that the Daubert factors argued against the reliability of Carlson’s methodology and granted the defendants’ motion for exclusion of Carlson’s testimony. ³³⁹¹ In a later motion for reconsideration, the trial court agreed that Daubert should be applied flexibly, and that other factors could argue in favor of admissibility; ³³⁹² the Court, however, ruled that Carlson’s methodology still failed to meet the Daubert reliability standard. ³³⁹³ The Eleventh Circuit Court of Appeals reversed, holding that the District Court erred as a matter of law in applying Daubert. ³³⁹⁴ In the Eleventh Circuit’s view, Carlson’s testimony relied on experience-based observation, which falls outside the scope of Daubert. ³³⁹⁵

The Supreme Court reversed and, in doing so, decided several issues relating to the application of Daubert that had arisen in the lower courts. ³³⁹⁶ The first issue was whether Daubert’s reliability requirement applies only to “scientific” expert testimony, as the Eleventh Circuit held, or to all expert testimony. Unequivocally, the Court stated that the trial court’s gatekeeping obligation applies to all expert testimony. ³³⁹⁷ Therefore, regardless of how the testimony is characterized, or what “general truths” it relies upon, Daubert requires the trial court to ensure that the testimony is relevant and reliable. ³³⁹⁸

In addition to finding that the trial court’s gatekeeping obligation applies to all expert testimony, the Court held that the Daubert factors do not constitute a definitive test. ³³⁹⁹ In other words, a trial judge performing the gatekeeping function may consider one or more of the specific Daubert factors. ³⁴⁰⁰ But, in all cases, the trial court must consider “reasonsonable measures of reliability” to ensure that an expert, whether basing testimony upon professional studies or personal

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