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Last week three of our posts dealt with Daubert issues.  That was not intentional.  Chalk it up to coincidence.  Or was it?  We are not especially superstitious, but maybe the passing last week of the great “Professor” Irwin Corey had something to do with the Daubert eruption.  Corey was a comedian who pretended to be “the world’s foremost authority”.  As if to parody the parade of plaintiff experts in mass tort cases, Prof. Corey would enter the stage wearing an academic robe, awkwardly look around at the crowd and down at his sneakers, begin with the word “However,” and then proceed to spout gibberish and vague Big Ideas that made no sense.  (This is not the first time in this blog that we have cited the wisdom of Prof. Corey.)  Corey was 102 years old.  He was doing comedy into his 90s, and consistently made more sense than most plaintiff regulatory or causation expert witnesses.  Catch his act on Youtube.  You will find it more enlightening than any plaintiff expert, or even most court opinions discussing the Daubert test.

As if to trumpet one final honor to Prof. Corey, we have a wonderful, clear, compelling Daubert opinion.  This one, Nease v. Ford Motor Co., No. 15-1950 (4th Cir. Feb. 1, 2017), has nothing to do with drugs or devices.  However, [we normally hate starting a sentence with that word, but if it was good enough for Prof. Corey, who are we to stand on ceremony?], the Nease case contains reasoning and language you might want to cite against the next plaintiff exercise in pretentious hokum. That the opinion comes out of the Fourth Circuit is both important and, for the most part, expected.  There are a couple of mass torts in the Fourth Circuit, and the effect of the Nease opinion can only be beneficent.  The Fourth Circuit has long had a reputation for having smart judges who follow the law.  (That being said, we nearly wept over the poor reasoning in the Fourth Circuit’s Cisson decision.)  In this season of judicial nominations by a new administration, we will hear a lot about how judges should decide, rather than create, the law.  The Fourth Circuit has not had a lot of judges posing as philosopher kings.  They actually tend to follow precedent.  We have it on good authority that when the DOJ had an internal debate about where to bring the 9/11 prosecutions – whether S.D.N.Y. (World Trade Center) or E.D.Va. (Pentagon) would be better for the government – the winning argument for E.D.Va. was based not on the pluses or minuses of the district court (or jury pool), but on whether the government would rather face the inevitable appeal in the Second Circuit or the Fourth Circuit.  There was a perception that the Second Circuit was more capable of activism, lenience, and surprise, none of which was particularly welcome under such circumstances.

If you like to see the law interpreted and applied, rather than created, the Fourth Circuit is usually a good forum.  That was certainly true in Nease.   The plaintiff in Nease claimed serious injuries from an accident allegedly caused by a defect in the speed control system of the plaintiff’s pickup truck.  The plaintiff offered the testimony of an electrical engineering expert who maintained that the speed control cable in the truck was susceptible to getting stuck while the throttle was in the open position, thus preventing the driver from being able to slow the vehicle down.  The defendant filed a Daubert motion, challenging the plaintiff expert’s methodology. The district court (S.D.W.Va.) denied the Daubert motion, waved the expert’s testimony along to the jury, and the jury returned a verdict for the plaintiff on strict liability and awarded more than three million dollars.

An appeal followed, and the Fourth Circuit reversed the judgment on Daubert grounds.  Thus, in Nease, you have the very strongest authority if you want to argue for exclusion on Daubert grounds.  Here is a case where a trial court’s tepid approach to Daubert – really an abdication – resulted in reversible error.

As a preliminary matter, the plaintiffs argued that no Daubert inquiry was necessary, because Daubert applies only “to novel scientific testimony, it does not apply in the expert field of engineering.” That argument turns out to be, in the words of the Fourth Circuit, “dead wrong.”  First, the Daubert decision itself made clear that its application was not limited to scientific theory.  Second, the Supreme Court made clear in the Kumho Tire case that Daubert was not limited to the testimony of scientists but also applied “to testimony based on ‘technical’ and ‘other specialized’ knowledge.” 526 U.S. at 141. The Fourth Circuit wryly observed that “Despite having cited Kumho Tire in their brief,” the plaintiffs were “apparently unaware that the very issue there involved the application of Daubert to the testimony of a mechanical engineer.”  Ouch.

Now we get to the application – or, rather, the nonapplication – of Daubert by the district court.  Rule 702 imposes “a special gatekeeping obligation on the trial judge to ensure that an opinion offered by an expert is reliable.”  Although a trial judge has broad discretion to determine such reliability in light of the particular facts and circumstances of the particular case, such discretion “does not include the decision “to abandon the gatekeeping function.” (Quoting Scalia’s concurrence in Daubert.)

In ruling on the defense motion to exclude the plaintiff expert’s testimony as unreliable under Daubert, the district court in Nease simply dismissed every argument as “go[ing] to the weight, not admissibility,” of the expert’s testimony.  We’ve heard that before.  The district court also repeatedly emphasized that the defendant’s arguments could find a satisfactory home in the cross-examination of the expert. We’ve also heard that before.  But the Fourth Circuit held that these excuses by the district court for avoiding a Daubert analysis amounted to “delegat[ion of] the court’s gatekeeping responsibility to the jury.” Accordingly, the Fourth Circuit concluded that the district court did not perform its gatekeeping duties with respect to the plaintiff expert’s testimony. The fact that an expert witness was “subject to a thorough and extensive examination” did not ensure the reliability of the expert’s testimony; such testimony must still be assessed before it is presented to the jury. Thus, the district court abused its discretion “by failing to act as a gatekeeper.”

What, specifically, were the problems with the plaintiff expert’s proffered expert opinion? The usual. The opinions were blatant ipse dixit.  They had never been tested. According to Daubert, “a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” 509 U.S. at 593. Indeed, the plaintiff expert’s conclusion seemed to run counter to the facts.  The expert asserted that the speed control cable in the vehicle was vulnerable to binding because the design allowed for contaminant to lodge between the speed control guide tube and the casing cap, and that such binding in fact occurred, which is what caused the accident.  But the expert was forced to concede that the speed control cable in the vehicle was not bound or wedged; the cable “moved freely” during a post-accident inspection. All that the expert had was a hypothesis that he failed to validate with testing.

There were other Daubert reliability markers that suggested the proffered testimony should not have been admitted under Rule 702. The expert had never published or otherwise subjected his theory to peer review. That is pretty much always the case with litigation junk science.  Further, there was no way to assess the potential rate of error of the expert’s methodology, because he did not actually employ a particular methodology to reach his conclusions.  Again, that is par for the course.  If we ever encounter a plaintiff expert who discloses an error rate for his or her conclusions, we will eat a bug.

Aside from the Daubert issue, the Fourth Circuit also decided that West Virginia law requires plaintiffs claiming a design defect to offer proof of a safer alternative design of the allegedly defective product. The Fourth Circuit cited West Virginia cases as well as the Restatement (Third) of Torts: Products Liability § 2, Reporter’s Note (1998). West Virginia cases have required plaintiffs in design cases to establish the “state of the art,” and doing so requires reference to an alternative safer design.  The problem for the plaintiffs in the Nease case was that their expert alluded to safer designs, but never performed tests or studies to determine whether, in fact, the other designs were involved in fewer binding incidents. The simple fact that these other designs had “generally been in use for decades is wholly insufficient to prove that such designs were safer with respect to the alleged binding incident and that reasonably prudent manufacturers would have adopted them.”  (You can find another good discussion of the alternative design requirement under West Virginia law here.)