Brandon Stachulski sued the owner of an Applebee’s restaurant in New Hampshire, alleging that he contracted salmonella when he ate an Applebee’s hamburger. The Applebee’s owner argued that Stachulski could not prove that its hamburger was the source of the salmonella. The owner argued that Stachulski could have been infected by his pet lizard or other sources of salmonella bacteria.

The jury found in favor of Stachulski and awarded him $750,000 in damages. On appeal, the Applebee’s owner challenged the trial judge’s decision to admit Stachulski’s expert evidence. The New Hampshire Supreme Court ruled in favor of Stachulski and affirmed the judgment.

Expert Testimony

Dr. Seth Rosenbaum, an expert in infectious diseases, testified for Stachulski. Dr. Rosenbaum reviewed Stachulski’s medical records and noted that he was diagnosed with a non-typhodial salmonella infection. That form of salmonella is typically food-borne.

After eating the Applebee’s hamburger, Stachulski became ill within the time frame during which symptoms of a salmonella infection would typically appear. Stachulski’s brother-in-law dined with Stachulski and also ate a well-done hamburger. Stachulski and his brother-in-law became violently ill at the same time, a fact that pointed to the hamburger as a source of the illness.

Dr. Rosenbaum thought it was unlikely that Stachulski contracted salmonella from his lizard because other family members had contact with the lizard but did not become ill. Other family members also eat the same food at home that Stachulski’s wife prepares. The fact that they did not become infected tended to rule out a home-based source of infection.

Stachulski’s wife has a health condition that, in Dr. Rosenbaum’s opinion, would make her susceptible to a salmonella infection. The fact that she did not become ill strengthened the inference that Stachulski’s home could be ruled out as the source of Stachulski’s salmonella infection.

Admissibility of Expert Opinions in New Hampshire

New Hampshire follows a version of the federal Daubert test for determining the admissibility of expert evidence. To be admissible, the evidence must meet a threshold of reliability. Reliable expert opinions are based on sufficient facts or data, are the product of reliable principles and methods, and result from the reliable application of those principles and methods to the facts of the case.

The state supreme court emphasized that the New Hampshire rule is interpreted liberally in favor of the admission of expert testimony. The proponent’s burden of proving that expert testimony is admissible is “not particularly onerous.” If an expert’s testimony is well grounded, it should be tested by the adversary system of justice, just like the testimony of fact witnesses. It is improper in New Hampshire to exclude expert testimony out of fear that juries are incapable of weighing its inadequacies.

Appellate Court’s Analysis

The supreme court determined that the facts recited above were sufficient to provide a basis for Dr. Rosenbaum’s expert opinion. The court also decided that Dr. Rosenbaum reliably identified and eliminated other potential causes of the salmonella infection, leaving the meal at Applebee’s as the most likely cause. The court noted that a “differential etiology” analysis is widely accepted as a reasonable means of determining the likely cause of a disease.

The defense argued that only the methods used by public health authorities to trace a disease outbreak to a particular source should be deemed reliable, because those are the only methods that have been tested and peer-reviewed, and are the only methods known to have low error rates. The fact that other or arguably superior methodologies exist, however, did not render Dr. Rosenbaum’s methodology unreliable.

The defense failed to establish that Dr. Rosenbaum’s methodology was likely to lead to an inaccurate result. The appellate court therefore deferred to the trial court’s conclusion that the methodology met the threshold standard for reliability. It was up to the jury to decide whether the defense attacks upon the methodology undermined the conclusions that Dr. Rosenbaum drew.

Finally, the defense complained that Dr. Rosenbaum had no basis for believing that the health condition of Stachulski’s wife made her more susceptible to a salmonella infection. Dr. Rosenbaum candidly admitted that he had no way of quantifying how much more susceptible to infection Stachulski’s wife might have been because of her condition. Even if that aspect of Dr. Rosenbaum’s methodology was questionable, Dr. Rosenbaum’s admission concerning the limits of his analysis minimized any prejudicial impact the testimony could have had.

Placing Trust in Juries

In the end, the court decided that Dr. Rosenbaum’s testimony had a reliable basis. The testimony may not have been perfect, but the law does not require perfection. To the extent that Dr. Rosenbaum’s testimony had weaknesses, the purpose of cross-examination is to expose those weaknesses.

After expert testimony is tested by cross-examination, the jury’s job is to weigh its strengths and weaknesses. Juries are the ultimate judges of the facts in our civil justice system and there is little reason to believe that they are less capable than judges of evaluating expert testimony. Because Dr. Rosenbaum’s testimony satisfied a threshold of reliability, it was up to the jury to decide whether his testimony proved that Stachulski’s disease was caused by eating an Applebee’s hamburger.

Through two Florida business entities, Superior Consulting Services, Inc. markets a blood-testing service to consumers that includes the creation of a “Healthprint” profile. Superior trademarked the term “Healthprint” to identify a profile that is “customized to a client’s unique biochemistry.” Superior markets the profile as assisting in the early detection of disease. Superior also provides nutritional advice to consumers who purchase a profile.

Shaklee Corporation applied for a trademark for “Healthprint” to identify a free, online survey that results in a recommendation for Shaklee’s nutrition supplements and related products. The recommendation purports to be tailored to a customer’s health goals, needs, and budget.

Superior sued Shaklee in federal court for trademark infringement and for violating a Florida law that prohibits deceptive trade practices. Both parties wanted to use expert witnesses at trial, and each party filed a Daubert motion to exclude the other’s expert.

Survey Evidence

Both experts offered opinions as to whether consumers are likely to confuse Shaklee’s use of “Healthprint” with Superior’s use of “Healthprint.” Both experts relied on survey evidence. The court’s Daubert analysis therefore focused on the methodologies the experts used to arrive at their diametrically different results.

Shaklee’s expert, Hal Poret, showed survey participants the Shaklee website displaying its “Healthprint” mark and the Superior website displaying its “Healthprint” mark. The survey then asked questions that were designed to determine whether the consumers were confused about whether the marks related to the same or different companies. Poret also used a control group that was shown the term “Healthstamp” instead of “Healthprint” as a safeguard against false positives.

Superior’s expert, Kirk Martenson, showed the word “Healthprint” to consumers in a plain font and described the services offered by Superior. He then asked questions designed to determine whether participants perceived the Healthprint name or services as relating to one or two companies. Martenson used no control group.

Both surveys purported to be versions of the Squirt test, which courts generally accept as a means of proving that similar trademarks are or are not confusing to consumers. The Squirt test typically places marks as they appear on products side by side and asks questions to determine whether their similar marks cause consumers to become confused about the source of each product.

Martenson’s survey found that the two uses of “Healthprint” were very likely to cause consumer confusion. Poret’s survey found little likelihood of confusion.

Martenson’s Flawed Methodology

The court faulted Martenson for designing a survey that failed to display the competing “Healthprint” terms to consumers in the context in which they were used. The court concluded that Martenson’s methodology was unreliable because it did not meet the basic standards of a Squirt survey: displaying two marks as they are actually used in the marketplace side by side to test whether they confuse consumers.

By asking questions about the term “Healthprint” without providing the context in which Superior and Shaklee used the term, the survey divorced the test from the real world. For example, customers were asked whether they thought the term “Healthprint” came from one company, two companies, or no company at all. The relevant question is not whether consumers are able to guess at the origin of a mark but whether they are confused, when they see two marks, about whether both marks are associated with the same product or service.

In addition, while Martenson found that consumers were confused as to the origin of the generic term “Healthprint,” the absence of a control group made it impossible to determine the cause of their confusion. Martenson contended that he was testing for the presence, not the cause, of confusion, but it is the cause of confusion that is relevant to a trademark infringement claim. If consumers are confused for reasons that have nothing to do with an allegedly infringing mark, their confusion is immaterial.

Finally, when Martenson’s survey described the service with which “Healthprint” is associated, it described only Superior’s service. It did not describe Shaklee’s. The court noted that a survey respondent “can only compare and contrast two services if they are given two services to compare and contrast.” If participants concluded that the term was associated with one service rather than two (which Martenson interpreted as a confusing association of the mark with a single service rather than two distinct services), the court deemed that conclusion to be compelled by survey questions that described only one service.

The court decided that Martenson’s methodology was “fatally flawed.” It therefore granted the Daubert motion and excluded Martenson’s testimony at trial.

Poret’s Reasonable Methodology

Superior complained that Poret only surveyed consumers who would consider using blood-test services to analyze nutritional needs. The court rejected the argument that Poret should also have surveyed consumers who might want a nutritional analysis without taking a blood test. While Superior occasionally offers nutritional advice without a blood test, it does not actively market those services using the “Healthprint” mark, so it was reasonable for Poret to exclude those consumers from his survey.

Superior also complained that Poret surveyed consumers who are at least 21 years old, while most of Superior’s customers are over the age of 50. Since Superior markets its services to all adults, however, Poret’s methodology was reasonable.

Superior complained that Poret showed survey participants a brochure that reproduced its website pages rather than showing them the actual website. That methodology was reasonable because it provided participants with the website content while assuring that each participant saw the same materials.

Finally, Superior complained that Poret showed participants the nutrition-related questions that Shaklee’s website asks but did not show them the questions that Superior’s website asks. Superior’s questions, unlike Shaklee’s, are included in the company’s order form. Showing the order form to participants would have underscored the fact that Superior’s services are much costlier than Shaklee’s and would have decreased the likelihood of finding consumer confusion. The decision not to show Superior’s order form to participants did not prejudice Superior and did not undermine the reliability of Poret’s methodology.

Having rejected all Superior’s challenges, the court denied its Daubert motion. The decision highlights the importance of using reliable survey methods when basing a patent infringement lawsuit on an expert’s opinion about the likelihood of consumer confusion.

Does expert evidence need to be admissible at trial before a judge can base a class certification decision on the evidence? A Ninth Circuit panel said “no” while a divided court recently declined to review the panel’s decision en banc.

Facts of the Case

Two registered nurses (“RNs”) filed a class action complaint against their former employer, Corona Regional Medical Center, alleging that Corona violated California wage laws in several ways, including the failure to pay wages for all hours worked, to pay overtime wages or all overtime hours worked, to provide RNs with off-duty meal and rest periods, to pay timely wages upon the termination of employment, and to provide accurate wage statements.

The RNs filed their lawsuit in state court. Corona removed it to federal court. The RNs asked the federal district court to certify subclasses as to each category of wage violation. The court denied that motion on several grounds, including its determination that the RNs’ financial injuries were not typical of those suffered by class members. In reaching that decision, the court decided that certain expert evidence offered by the plaintiffs was not admissible under federal law, and that the plaintiffs therefore failed to demonstrate any injury at all.

The RNs appealed. The Court of Appeals for the Ninth Circuit reversed the district court’s order. The court based its ruling in part on the conclusion that the RNs were entitled to rely on evidence to demonstrate typicality that would not be admissible at trial.

Expert Evidence

To establish the typicality of their injuries, the RNs submitted a declaration prepared by a paralegal employed by their law firm. The paralegal reviewed payroll records and determined that Corona “rounded” the time shown on time cards to the nearest quarter hour.

Using a sampling of timesheets, the paralegal compared the time for which Corona paid its employees to the time they actually worked, as recorded on time cards. The paralegal concluded that over hundreds of shifts, Corona’s rounding practice undercounted one RN’s time by eight minutes per shift and undercounted the other RN’s time by six minutes per shift.

The RNs did not submit declarations until after Corona challenged the paralegal’s declaration. Nor did the RNs have a payroll expert or statistician prepare the analysis on which they relied. Had their counsel taken those steps, the legal issues raised on appeal would likely have been avoided.

The district court concluded that the paralegal’s analysis was not admissible because:

• the paralegal was a lay witness who had no personal knowledge of the data that he analyzed;
• the opinions that the paralegal offered were “technical” and “specialized” and thus could only be offered by an expert witness; and
• the paralegal was not qualified to provide expert testimony.

Since the paralegal’s analysis was based on the kind of arithmetic a high school graduate should be competent to perform, the district court’s conclusion that the paralegal’s opinions were based on “technical” or “specialized” knowledge is doubtful. The larger question, however, is whether evidence of typicality must be admissible at trial before it can satisfy the requirements of class certification.

Evidence Required for Class Certification

Class certification decisions require the district court to analyze facts. The Ninth Circuit cautioned that the analysis does not require a “mini-trial.” A trial determines the merits of claims asserted by plaintiffs. Courts decide whether to certify a class without deciding the merits of class claims.

Accordingly, the appellate court deemed it a matter of common sense that the “formal strictures” of a trial, including the rules of evidence, should not necessarily constrain the court’s determination of whether the facts support bringing the case to trial as a class action. “Inadmissibility alone,” the court held, “is not a proper basis to reject evidence submitted in support of class certification.”

The court acknowledged that the Fifth Circuit requires all evidence in support of class certification to be admissible, while the Third and Seventh Circuits require expert evidence to be admissible. The Eighth Circuit, on the other hand, noted that the limited decision to certify (or not) a class is a preliminary determination made early in the case, usually before the conclusion of merits discovery. For that reason,the Eighth Circuit allows courts to rely on evidence to certify a class that might not be admissible to prove the merits of a claim.

Since evidentiary uncertainty is inevitable at the certification stage and since a class can always be decertified later, the Ninth Circuit agreed with the Eighth Circuit that the Daubert standard applies to the evaluation of evidence proving the merits of a case, not to the preliminary decision to certify a class.

Formalism v. Justice

At least as applied to the facts of this case, the decision was in fact based on common sense. The paralegal’s statistical analysis may not have satisfied Daubert  because it was not accompanied by an explanation of the methods used to extract data, but it is fair to assume that the methodology would be fairly obvious to anyone who examined the spreadsheets that the paralegal created from the payroll data. If data was cherry-picked, one would expect the defense to point that out by submitting its own analysis using a different sampling of the data.

The appellate court concluded that the district court’s reliance on “formalistic evidentiary objections” prevented it from considering evidence that “likely could have been presented in an admissible form at trial.” For example, the plaintiffs responded to Corona’s objections by presenting declarations that authenticated the payroll data — the accuracy of which Corona never challenged — but the district court rejected the declarations as “new evidence.” The only thing new, however, was the authentication of the payroll data, not the payroll data itself.

The appellate court noted that the district court’s “narrow approach” told it nothing about whether the typicality requirement was actually satisfied, and thus prevented the court from determining whether allegations about Corona’s violation of California wage laws should most efficiently be resolved in a class action. In essence, the district court elevated evidentiary formalities over justice.

Using a paralegal to crunch data was not an ideal way to present evidence to the court. Still, the plaintiffs were certainly capable of giving admissible testimony that “we weren’t paid for all the hours we worked,” which is all it would have taken to demonstrate that they — and employees like them — were harmed by wage violations. That they did so only after Corona challenged the admissibility of the payroll analysis they presented hardly seems like a sufficient justification to deny an entire class of employees the opportunity to prove that Corona cheated them out of the full wages they earned.

Lessons Learned

The Ninth Circuit recently denied a petition to rehear the appeal en banc (that is, to have the entire court consider the issue), but five judges dissented from the denial. The dissenting judges believed that circuit precedent, the prevailing view in other circuits, and “the Supreme Court’s clear guidance” compel the conclusion that expert evidence must pass the Daubert test of admissibility before it can be considered in support of a certification motion.

The dissenters were incredulous that the other judges were willing to accept the calculations of a mere paralegal, whether or not the calculations were probably correct. The dissenters devote a footnote to their assumption that the paralegal’s simple arithmetic had to be supported by expert testimony, despite ample precedent for the proposition that arithmetical calculations that most reasonably intelligent people could make, and that most jurors could understand, need not be made by experts.

The Ninth Circuit’s decision results in an apparent circuit split that may be resolved by the Supreme Court if Corona petitions for review. In the meantime, prudent attorneys who need to present statistical evidence in support of certification motions would be well advised to hire a payroll expert, an accountant, or a statistician to derive conclusions from payroll records or other data compilations. Whether or not an expert is strictly necessary (and in some circuits, an expert’s testimony is vital), employing the services of an expert in a wage claim should significantly improve the odds that a court will certify a class.

The North Carolina Court of Appeals ruled that a trial court did not err by admitting expert testimony from a drug recognition expert (DRE) in an impaired driving trial. Usually, a DRE provides probable cause to justify an arrest, while a subsequent blood test establishes that the defendant had consumed a controlled substance.

In most cases, a jury infers impairment from drug consumption, bad driving, and other indicia of intoxication. Whether a DRE should be allowed to offer an expert opinion as to impairment is, at best, a controversial issue. When a court allows a DRE to testify, defense attorneys should be prepared to counter the testimony with experts of their own.

Facts of the Case

Stacie Fincher uses prescription medications to control her bipolar disorder. During the early morning hours of February 10, 2015, she took another prescription medication, Xanax, to help her sleep.

Stacie drove to her doctor’s office for a follow-up examination related to her ankle surgery. She then drove to a pharmacy to pick up a prescription. She was in a fast food drive-thru lane when her foot slipped off the brake and she rear-ended another car.

Two Asheville police officers who responded to the scene testified (as officers invariably do when they make an impaired driving arrest) that Stacie had glassy eyes and slurred speech. Stacie admitted that she had taken Xanax several hours earlier.

One of the officers administered field sobriety tests to Stacie, including the Horizontal Gaze Nystagmus (HGN) test. He determined that Stacie had the maximum number of points on that test, which is supposedly a sign that the test subject has a prohibited blood alcohol concentration.

Relying on shaky science, the National Highway Traffic Safety Administration (NHTSA) “validated” the HGN as a means of determining probable cause that a driver’s blood alcohol concentration exceeds 0.08{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}. A notable fact overlooked by the court of appeals is that the NHTSA developed the HGN to detect a prohibited blood alcohol concentration, not to detect impairment from drug use.

Since Stacie was wearing an ankle boot, the officer did not have her perform the other standardized field sobriety tests, which are only valid if an individual has the ability to walk normally regardless of alcohol or drug ingestion. The officer administered a preliminary breath test and found that Stacie had consumed no alcohol.

The officer arrested Stacie for driving under the influence of drugs based on her glassy eyes, slurred speech, the HGN test, her admission to taking Xanax, and the fact that she had been in an accident. She agreed to have her blood drawn.

DRE Evidence

The arresting officer then had Officer Scott Fry, a certified DRE, perform a twelve-step evaluation of Stacie. A DRE is trained and certified by the police. A DRE completes a course that teaches the officer to administer a twelve-step drug evaluation and classification protocol that theoretically determines whether a suspect is impaired by the consumption of a drug, and to classify the drug that caused the impairment.

At Stacie’s trial, Fry testified that Stacie’s blood contained “measurable amounts” of Xanax. The fact that a “measurable amount” of a drug is present in blood, however, does not establish that a sufficient quantity of the drug was consumed to impair safe driving.

Fry also testified about his conclusions as a DRE. The defense apparently offered no expert testimony to challenge the scientific validity of drug recognition evidence.

The court instructed the jury that Xanax is an “impairing substance,” although whether an “impairing substance” has actually caused an impairment is a different question. The jury found Stacie guilty of DWI.

Appellate Opinion

In a cursory opinion, the court of appeals concluded that the DRE’s testimony was admissible, and that the evidence was sufficient to prove that Stacie was impaired by her consumption of Xanax. The opinion is not a model of judicial reasoning.

The court noted that Stacie’s eyes were red and glassy and that her speech was slurred, but pointed to no evidence that Xanax causes those side effects. The court cited Stacie’s performance on the HGN test but failed to acknowledge that no peer-reviewed scientific literature validates the HGN as evidence of impairment resulting from the consumption of Xanax.

The court also noted that Stacie rear-ended another car, but hundreds of people are involved in rear-end accidents every day, most of whom are not impaired. That leaves the DRE’s testimony as the critical evidence of Stacie’s guilt.

North Carolina law generally follows the Daubert standard, but in an apparent effort to make it easier for prosecutors to obtain DWI convictions, North Carolina does not require the same standard of reliability for DRE evidence. The state legislature apparently concluded that protecting corporations from money damages was more important than protecting individuals accused of crime from imprisonment.

A North Carolina statute allows a “witness who has received training and holds a current certification as a Drug Recognition Expert” to offer an opinion “whether the person was under the influence of one or more impairing substances, and the category of such impairing substance or substances.” The “category” into which Xanax falls is “central nervous system (CNS) depressant.”

A study shows that DRE-trained officers are able to correctly identify a test subject as being under the influence of a CNS depressant only 42{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the time. It is startling that the North Carolina legislature concluded that being right less than half the time is good enough for North Carolina criminal cases.

Since the DRE who examined Stacie had a certificate, the court determined that his testimony was properly admitted. Whether his methodology was reliable, the court decided, was a question that the North Carolina legislature had already determined.

A DRE will always be a police officer testifying for the prosecution. North Carolina’s DRE law is plainly intended to allows officers who pass a class to help prosecutors obtain convictions by posing as experts, whether or not their testimony has any scientific validity.

The Importance of Defense Experts

Courts that apply more rigorous standards to DRE opinions often come to a different conclusion. For example, a Maryland trial court determined that DRE evidence is inadmissible under Maryland’s Frye standard because the methodology employed by drug recognition experts is “not generally accepted in the fields of medicine including specifically pharmacology, neurology, ophthalmology and psychiatry.”

The court concluded that acceptance of DRE evidence by NHTSA and the International Association of Chiefs of Police (IACP) should not be conflated with acceptance by a scientific community. The court noted that “NHTSA and the IACP are long-time proponents of the DRE program and have a vested interest in its acceptance and use.” The court probably realized that NHTSA has a long history of developing field tests that purport to be scientific without validating them using peer-reviewed, independent (not funded by NHTSA) scientific analysis under the conditions in which the field tests are actually employed.

The court examined four independent, double-blind studies that “conclusively show” that a DRE’s predictions of impairment based on the DRE protocol are “no better than chance.” Since no peer-reviewed studies accepted the legitimacy of the DRE protocol, and since it is so obviously biased to favor the police in making arrests, the court declined to admit DRE testimony as evidence of guilt.

Even when courts allow a police officer to testify as a DRE, defense attorneys have the opportunity to challenge that testimony. Medical experts can explain why no medical professional would make a judgment of impairment based on the DRE protocol. Experts in scientific methodology can explain why the DRE protocol should not be accepted as valid. A vigorous cross-examination of the DRE may be sufficient, but when a defendant can afford to hire an expert, the opportunity to raise a reasonable doubt about the DRE testimony increases exponentially.

Junk science has no place in a criminal trial. Whenever a police officer purports to give scientific testimony, it is critical for the defense to retain experts who can educate the jury about the difference between scientific methods that have been independently validated and result-oriented junk science that NHTSA or police agencies have developed to make it easier for the police to make arrests.