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.