We often encounter cases where the lawyers or judges do things that are mysterious, disappointing, or just plain crazy. And the temptation is there to poke fun or criticize. But the nuns taught us long ago that it’s better to light a candle than curse the darkness. So we try to insert something constructive in our summaries of the latest News of the Weird.
On that bit about lighting a candle, we never thought about lighting a candle in our ear. That seems a little strange. Maybe even a little risky. We can’t think of a good reason to plant a candle in an ear, and we can think of a pretty good reason not to: hot wax. That might hurt.
And in fact hot wax from an ear candle did hurt the plaintiff in Danaher v Wild Oats Markets, Inc., 2011 US Dist. LEXIS 19676(D. Kansas February 28, 2011). Ms Danaher bought an ear candle from a supermarket and then submitted to the not-so-tender mercies of a professional ear candler.
Before reading this case we had never heard of ear candles. We knew about candles, of course — for birthdays, for creating a cinnamony aroma when you’re trying to sell a house, and for gooey, sentimental imagery in an Elton John song. We also knew from our high school Health teacher about never putting anything in your ear smaller than your elbow. So imagine our surprise when, after a little research, we saw pictures of people laying sideways with saucers against an ear and a burning candle sticking through a hole in the saucer. The theory behind this practice (originating from either ancient cultures, Hopi Indians, or the fertile minds of charlatans – depending on who you ask) is that the candle draws out pesky ear wax. Some folks – including Ms Danaher’s expert – think that’s dangerous bunk.
Ms Danaher’s inner ear was burned and she lost hearing in that ear. She brought a lawsuit alleging the usual product liability causes of action. She also retained an expert otolaryngologist – that’s an ear, nose, and throat doctor. The issue in the decision that brings us together today is whether the expert otolaryngologist was qualified to opine that ear candles are of no benefit, are unreasonably dangerous to ears, and are not reasonably safe. Put another way, the ear doctor believed that ear candles are defective. In the end, the court excluded those opinions under Daubert (though there were other opinions that passed muster) because while the otolaryngologist knew plenty about ears, he didn’t know much about ear candles.
Let’s confess that we were initially a little surprised by this opinion. After all, why can’t an ear doctor say that a candle can do no conceivable good for an ear, and that hot wax can do lots of harm? It’s almost a matter of common sense. (Of course, if it’s just common sense, then it’s not really an expert opinion, is it?). But the court’s decision starts to ring true when you think about it a while. There’s a continuum between the defect and injury issues, and while the otolaryngologist was qualified to opine on the latter, he couldn’t deliver the goods on the former.
The court’s decision was made easier by some of the particulars of the Daubert issue in the case. The court made 29 findings of gaps in the plaintiff expert’s knowledge about ear candles. The otolaryngologist (who, by the way, appears to have been a perfectly well-qualified otolaryngologist) had no education or training regarding ear candles, knew nothing of their manufacturing, design, or sales, knew nothing of the differences among different ear candles, etc.
Now we can hear the expert say something like, “Wait a minute, the reason I don’t have any education or experience regarding ear candles is because they are quackery.” But the problem is that the expert didn’t do even the minimum to comment on ear candles. He had never even seen one burn. And the “articles and publications relied upon by Dr. Wiet to support his opinions were all obtained in the week before his deposition .” 2011 US Dist LEXIS 19676 * 11. Thus, the expert did not rely on those materials before writing his expert report. He might have reviewed other materials before writing his report, but he couldn’t recall them specifically. Ouch!
So what are we to make of this? One question the Danaher case raises is how to square Daubert with a subject matter that is inherently unscientific. Suppose the plaintiff retained the most qualified ear candler (or drowser or wiccan) in the world to be her expert. Would the other Daubert criteria still mandate exclusion?
But the main takeaway in this case is that the defense did a nice job of elaborating upon a fairly simple point– that the expert didn’t know much about ear candles. The court was able to announce 29 separate findings because the defense had elicited all those specific facts during the expert deposition. The lesson is that when you have a good fact, break it down into bits, multiply it, and give it some heft and texture. It’s like the scene in My Cousin Vinny where Vinny cross-examines an eye-witness about the witness’s inability to get a clear look at the getaway. Vinny could have quickly made the point that there were several obstructions in the way, but he does way better than that; he lingers over every dirty screen, every tree (almost every leaf) and every bush. That’s what happened here. The defense could have simply elicited from the expert that he had no training or experience with ear candles. But the defense brought out every specific gap in education, training, or experience. After a while, it started to seem devastating. Whenever you confront an expert who seems learned and maybe even brilliant, start playing a game of Jeopardy with the witness, asking about every fact you can think of regarding the plaintiff or the product. It’s obviously better to do that in a deposition. But you can do it in trial, as well. If the expert knows a fact, just act like it’s natural. (“Of course you know that. You’d have to know that. And you must also know X, don’t you? What’s that? You don’t? Huh….”) When you find a hole, keep digging.
On the other side, it really is inexcusable, maybe even arrogant, for the expert not to have done some minimal research on the product. For Heaven’s sake, at least light a candle.
Failure to arm your expert with basic factual familiarity about the product is unsound. It could result in your client – or you – getting burned.