Category Archives: General

Expert Allowed to Use Statistical Evidence of Plaintiffs’ Damages in FLSA Class Action

Eighth Circuit Discusses Whether an Expert Considered “Sufficient Facts” to Support a Conclusion

Joseph and Cindy Hirchak sued W.W. Grainger, Inc. and its subsidiary for selling and failing to warn about an allegedly defective product. They based their claim that Grainger sold the product on the opinion of an expert witness. A federal judge in Des Moines ruled that the expert’s testimony was inadmissible and granted summary judgment to Grainger. The Court of Appeals for the Eighth Circuit affirmed that decision.

Facts of the Case

Grainger distributes industrial equipment, including web slings. A web sling consists of straps or webbing. The webbing is typically made from polyester or a similar synthetic material. Web slings are wrapped around heavy objects and attached to a lifting device (such as a crane). The sling supports the objects as they are being lifted.

Joseph Hirchak was employed by Weiler Inc. Hirchak was working at Weiler’s plant when a web sling broke. The sling had been holding a load of steel tubing. The tubing fell on Hirchak, causing injuries.

While workers’ compensation is generally an exclusive remedy against an employer, an injured employee can bring injury claims against third parties if their negligence contributed to a work injury. Hirchak’s suit against Grainger alleged that Grainger supplied a defective web sling to Weiler and failed to warn Weiler about the defect.

Grainger distributes a variety of slings, including slings made by Juli Sling Company. Juli is a Chinese company. Hirchak alleged that the Grainger sold the defective Juli sling to Weiler. Grainger admitted that Weiler has an account with Grainger but denied that it supplied the defective sling to Grainger.

Grainger relied on its sales records and on the absence of Weiler purchase records evidencing sling purchases from Weiler. Grainger also argued that the Juli slings it distributes have sewn-in tags that the defective sling lacked. According to Grainger, those tags are sewn in by Juli. Grainger therefore contended that the defective sling was not a Juli sling.

Expert Evidence

To prove that Grainger supplied the defective sling, Hirchak relied on an expert opinion. Hirchak’s expert identified similarities between the defective sling and slings manufactured by Juli and distributed by Grainger. The expert based that comparison on two Juli slings that Grainger distributed, including a sling purchased from Grainger for the purpose of comparison and one furnished by Weiler. How Weiler determined that the sling was acquired from Grainger was unclear to the appellate court.

Grainger challenged the expert report. Grainger argued that virtually all web slings distributed in the United States share the similarities that the expert identified, regardless of their manufacturer. Grainger also argued that the expert failed to establish that it distributed the defective sling.

District Court Opinion

The district court decided that the expert’s opinion was not based on sufficient facts. Assuming that the points of comparison were sufficient to identify the defective sling as a Juli sling, that identification did not prove that Grainger distributed the sling. Weiler could have acquired it from any of Grainger’s competitors.

After excluding the expert opinion, the district court asked whether the remaining evidence established that Grainger distributed the defective sling. Finding none, it granted summary judgment in Grainer’s favor.

Appellate Opinion

The Eighth Circuit noted that experts must base opinions on sufficient facts to assist the jury in deciding factual disputes. When are facts “sufficient”? One measure of sufficiency is whether the facts both support the expert’s opinion and allow the expert to exclude other possibilities.

The court recognized that it isn’t necessary to rule out every possible alternative conclusion. It is, however, necessary to consider enough facts to account for obvious alternatives. The failure to rule out obvious alternatives suggests that the expert either failed to consider sufficient facts or failed to explain why the expert’s reasoning makes the expert’s conclusion more sound than alternative conclusions.

The court decided that the expert failed to consider sufficient facts to rule out the conclusion that a different distributor supplied the defective sling to Weiler. The expert’s focus was on facts tending to show that Juli manufactured the sling. The expert considered only a few facts to prove that Weiler obtained the sling from Grainger.

The expert compared the defective sling to two Juli-manufactured slings that came from Grainger. That comparison supported a conclusion that Grainger sells slings that are similar to the defective sling. Since other distributors also sell Juli-manufactured slings, the facts upon which the expert relied were not sufficient to rule out the alternative conclusion that a different distributor supplied the sling to Weiler.

Hirchak argued that, since Weiler had a Grainger-distributed Juli sling in its plant, it is reasonable to infer that Weiler acquired the defective sling from Grainger. Oddly, the court of appeals held that the expert could not draw that inference because only the jury could do so. Yet by granting summary judgment, the court deprived the jury of the opportunity to draw the inference.

A better analysis might focus on whether the inference is sufficiently reasonable that it would support a jury verdict in Hirchak’s favor. The fact that Weiler had one Juli-sling that was distributed by Grainger does not imply that all of its other slings came from Grainger.

While an expert may well have been able to identify the manufacturer of the defective sling, identifying its distributor was probably beyond the realm of expert testimony. Purchases and sales are typically proved by purchase records or the testimony of sellers or buyers. In the absence of that evidence, Hirchak had little hope of proving his case through expert testimony.



Lawyer Sanctioned for Intimidating Expert Witness

In an ideal world, all the players in the legal system, including judges, lawyers, and expert witnesses, would behave professionally at all times. Professional behavior includes treating other professionals with civility.

In the real world, participants in the legal system do not always bring a professional demeanor to court. A lawyer who tried to intimidate an expert witness recently learned that unprofessional behavior has consequences.

Intimidating Comments

Rudy W. Gorrell, Jr. is an attorney in Louisiana. He represented Brienne Russ in separate custody cases against the fathers of her two children. Both fathers were represented by Terrance Prout.

Prout called the same pediatric psychologist to testify as an expert witness in each case. She appeared in court three times.

On the first occasion, Gorrell approached the expert in the courtroom before she testified. Gorrell told her: “I’m coming for you”; “You’re not needed here”; “You’re not going to get on the stand”; and “I’m going to make you sit here all day.”

Before the expert testified, the hearing was continued to a new date. The expert appeared again on that date. Before the hearing started, Gorrell approached her in the courthouse parking lot and said, “I’m not sure why you’re here” and “You’re not going to testify again today.” The expert explained that she was in court because she had been subpoenaed to appear. Gorrell then said, “Well, you can’t testify to the child’s anxiety, and I am going to get you.” He added, “I don’t know why you are coming up, because we don’t need you to come up here [to testify].”

The hearing was again continued. The expert returned for the third court date. As she was sitting next to one of Prout’s clients on a bench outside the courtroom, Gorrell approached her and said, “You better stop messing with me, I will get you.”

The expert was finally able to testify at the third hearing. However, she was intimidated by Gorrell’s remarks and at times felt physically afraid of him.

Gorrell’s Explanation

At his disciplinary hearing, Gorrell denied threatening the expert or telling her she didn’t need to be present. He claimed that he merely suggested she should be on call rather than sitting around waiting to testify.

Gorrell testified that he told the expert that he disagreed with the relevance of her opinions because they were based on anxiety the children had experienced two years earlier. Why Gorrell would deem it appropriate to discuss the relevance of testimony with the witness rather than opposing counsel or the court is unclear.

Gorrell suggested that Prout’s animosity toward him accounted for the expert’s accusations. He admitted, however, that he could not think of any reason why the expert would lie about him.

Discipline Imposed

The hearing committee that considered the ethics complaint resolved the conflicting testimony in the expert’s favor. The committee concluded that Gorrell’s comments to the expert “caused her to feel intimidated and had no substantial purpose other than to delay or burden her.”

While the expert felt intimated, the hearing committee noted that Gorrell’s conduct caused no actual harm because it neither delayed the proceedings nor influenced the expert’s testimony. The committee nevertheless recognized the potential for harm. Witness intimidation can discourage witnesses from giving truthful testimony.

Intimidation can also discourage professionals from providing expert testimony in future cases. Experts who suffer abuse may decide that providing expert testimony isn’t worth the trouble.

The Louisiana Supreme Court agreed with the hearing committee. The court noted that Gorrell had no prior discipline during a long career. It therefore agreed with the committee that a public reprimand was warranted as discipline for his unprofessional conduct.

The Need for Civility

Commentators have long bemoaned the loss of civility in the legal profession. Supreme Court Justice Neil Gorsuch has argued that the loss of professional civility reflects a larger “civility crisis” in society. In Justice Gorsuch’s words, the growing tendency to shout down and insult people with whom we disagree reflects a failure to embrace the American ideals of freedom and equality. Maintaining a free society requires “treating each other as equals — as persons, with the courtesy and respect each person deserves — even when we vigorously disagree.”

The Gorrell decision should remind lawyers that the duty to provide vigorous advocacy in the courtroom does not justify an attempt to discourage an expert witness from testifying. Lawyers who disagree with an expert witness can attempt to expose flaws in the expert’s opinions through cross-examination. Confronting and attempting to intimidate an expert witness outside the courtroom is never acceptable behavior.


North Carolina

North Carolina Permits Expert Testimony Regarding Shell Casing Ejection Pattern

The North Carolina Court of Appeals faulted an attorney for challenging a decision to admit expert testimony without relying on the North Carolina Rules of Evidence. A doubtful experiment in shell casing ejection by a prosecution expert was deemed admissible because the defense attorney failed to challenge the admissibility of the experiment under Daubert.

Facts of the Case

John Turner shot Nicholas Parker. The two neighbors had a quarrelsome history. They had heated disputes about the location of their property boundary, among other issues.

Turner testified that a stray dog had been causing problems in the neighborhood. Turner said he had tried, without success, to get the dog under control.

Turner testified that he heard gunshots coming from Parker’s property. He then saw that the stray dog was injured. Believing that Parker had shot the dog, Turner armed himself with a handgun. Turner then walked down the road to find the dog.

Turner saw the dog at about the time he encountered Parker. Turner chambered a round in his gun, apparently to ready himself to end the dog’s suffering. He discovered, however, that the dog had already died.

According to Turner, Parker was enraged. Turner testified that Parker said that he shot the dog and would shoot Turner too. Turner also testified that Parker said he had been “waiting for this” and that they would “get this over with.”

Turner testified that he saw Parker reach for his waist. Assuming that Parker had a weapon in his waistband, Turner shot him. Turner testified that he was “stumbling backward” when he fired the shots. Turner then called 911 to request medical assistance for Parker.

The medical examiner testified that Parker was shot eleven or twelve times. All but two of the bullets entered Parker’s back.

Turner argued that he acted in self-defense. Even if Parker had no gun, a mistaken belief that the facts justify killing another person in self-defense could result in a conviction for the lesser crime of voluntary manslaughter under North Carolina law.

The jury found Turner guilty of murder. The jury also found Turner guilty of possessing a firearm as a felon.

Expert Testimony

Investigators discovered eight shells at the crime scene that had been ejected from Turner’s gun. The shells were in a straight line and at various distances from each other.

Kelby Glass, a forensic firearms examiner employed by the sheriff’s department, testified over objection as an expert witness for the prosecution. Glass conducted an experiment to determine the direction and distance that shells would travel after being ejected from Turner’s gun.

Glass testified that when he fired the gun while it was parallel to the ground, the ejected casings traveled backward and to the right for about eight or nine feet. When he angled the gun downward, the ejected casings traveled forward and to the right for about nine to eleven feet.

Glass offered no opinion about Turner’s location or movement when he fired the gun. Given the location of the shell casings, the prosecutor argued that Glass’ experiment disproved Turner’s testimony that he was stumbling backwards when he shot the gun.

The prosecutor argued that the position of the shell casings proved that Turner was moving toward Parker as he fired the gun. The prosecutor asked the jury to infer that Turner shot Parker in the back after Parker was already on the ground, an inference that is inconsistent with self-defense.

Potential Daubert Challenges to Expert’s Experiment

North Carolina has interpreted its Rules of Evidence in a matter that adopts the Daubert standard. Had Turner based his objection on Daubert, he could have challenged Glass’ testimony on the ground that it was not derived from a reliable methodology. Glass did not claim to have fired the gun while stumbling backwards. In the absence of that data, it is difficult to understand how Glass’ experiment could be said to disprove Turner’s testimony.

There is no suggestion in the appellate decision that Glass based his experiment on a peer-reviewed methodology. At least one forensic study concluded that a variety of factors can affect shell casing ejection patterns, including how the shooter gripped the gun. Two different people standing in the same location and holding the same gun at the same angle can produce significantly different ejection patters. That information, if placed before the court, might have convinced the judge that Glass’ experiment was incapable of returning meaningful results.

Moreover, Glass did not interpret his experimental results. The prosecutor, who certainly isn’t a forensic expert, provided an interpretation during closing argument. One wonders how an expert’s testimony about experimental results that fails to recreate the circumstances of the shooting and that is not accompanied by interpretative analysis was relevant. One might also wonder how a prosecutor with no scientific credentials at all was permitted to express opinions about the meaning of an experiment that the expert who conducted it failed to articulate.

Court’s Analysis of Turner’s Challenge

How the court might have analyzed a Daubert challenge is unknown because Turner did not make one. Instead, he relied on an older line of North Carolina cases that he viewed as more favorable to his position. While those cases, which ask whether the challenged experiment was “substantially similar” to the facts of the case, raise questions that are relevant to a Daubert analysis, they do not reflect the totality of the Daubert standard.

The court of appeals concluded that the “substantial similarity” of an experiment is no longer a standalone test in North Carolina. Rather, the Daubert analysis asks whether the expert’s opinion is based on sufficient facts or data, was the product of reliable principles and methods, and derived from a reliable application of those methods to the facts.

A strong challenge to each of those prongs could have been advanced. Turner could doubtless have found a forensic expert of his own to challenge the reliability of Glass’ methodology and the adequacy of the data that his experiment produced. He could also have challenged the relevance of an experiment that the expert witness fails to interpret. Since he didn’t, the court rejected his argument because it was based on precedent that is no longer controlling.

Lessons Learned

Although Turner did not mention the Daubert standard on appeal, the appellate court noted that it would “readily conclude” that the trial court would not have abused its discretion if it had applied the Daubert standard. On the record before the court, that observation might have merit. However, Turner’s counsel didn’t make a record that would allow the court to apply Daubert in a meaningful way.

The appellate court recognized that Glass didn’t know how Turner was gripping the gun and that Glass and Turner were standing on different surfaces when Glass conducted his test. However, Glass testified that those differences weren’t important. That was good enough for the appellate court to conclude that a Daubert challenge would have failed.

Turner could have challenged Glass’ opinion by calling his own forensic expert. The court might have come to a different conclusion after learning that research undermines Glass’ confidence that his failure to consider important variables did not influence his findings. It is difficult to understand how Glass’ experiment could have survived a Daubert analysis if an expert, relying on peer-reviewed studies, had pointed out the obvious flaws in Glass’ methodology.

There are two lessons to learn from Turner’s case. First, in a Daubert state, objections to the admissibility of expert evidence should be framed in terms of the Daubert standard. Second, when the prosecution wants to introduce an expert witness, the defense should always investigate the possibility of calling its own expert to elucidate flaws in the prosecution expert’s methodology.


Idaho Justice Legal System Concept

Medical Malpractice Decision Reversed for Improperly Excluded Expert Testimony

The Idaho Supreme Court has ruled that an Idaho family will have another chance to prove that a hospital is vicariously liable for the actions of doctors because a lower court improperly excluded its expert witness testimony.

The Injury

In May 2015, Duane Dlouhy went to the emergency room at Kootenai Health because of rectal bleeding. Dr. Robert Seeley performed a CT scan on Dlouhy and found “no obvious mass,” but noted the presence of “dark red blood.” A radiologist noted that a “neoplasm could not be excluded.” Dlouhy was discharged from the hospital.

Just hours later, Dlouhy went back to the hospital when the rectal bleeding resumed and his wife found him passed out in the bathroom. Another doctor saw Dlouhy and noted that the CT scan that had been performed earlier that day revealed “some thickening of the lateral aspect of the rectum.” Dr. Michael James performed a colonoscopy on Dlouhy but was unable to get a complete view of the rectum. Dr. James suspected that the bleeding was diverticular and noted that there was a large amount of blood and clotting in the mid-ascending colon. Dlouhy was discharged and followed up with his primary care physician in June 2015.

Dlouhy had additional follow-up visits related to his gastrointestinal issues in June 2015, September 2015, and January 2016. The possibility of colorectal cancer was not discussed or charted at any of these visits. In August 2016, Dlouhy was diagnosed with stage IV colorectal cancer.

The Lawsuit

In May 2017, the Dlouhys filed a complaint against the Kootenai Clinic and two physicians, alleging medical malpractice.  On June 5, 2017, Dlouhy died of colorectal cancer. Amended complaints were filed, adding Dlouhy’s children as plaintiffs and adding additional doctors, Western Medical Associates, and Kootenai Health as defendants. The parties settled claims against all defendants, with the exception of Kootenai Health.

The Dlouhys retained expert witnesses to testify on their behalf. Two experts, Kenneth J. Hammerman, M.D., and Judy L. Schmidt, M.D., were retained to testify about the standard of care. Kootenai Health filed a motion for summary judgment, arguing that the Dlouhys failed to establish an essential element of their claim because they had not presented experts with “actual knowledge” of the applicable community standard of care. The district court agreed with Kootenai Health and granted the motion for summary judgment. The Dlouhys appealed.

Dlouhy v. Kootenai Hospital District

The Idaho Supreme Court reviewed the district court’s ruling for an abuse of discretion. In Idaho, for an expert to testify about the applicable community standard of care, “he or she must have actual knowledge of the community standard as it existed ‘at the time and place of the alleged negligence.’” Plaintiffs may use local experts (who practice in the same community as the defendant health care provider with actual knowledge of the community standard of care that applies) or out-of-area experts (who must also explain how he or she came to be familiar with the community standard of care). Both Dr. Hammerman and Dr. Schmidt were out-of-area experts.

The court noted that for board-certified specialists, the local standard of care is equivalent to the national standard of care. Both of the proposed experts were board-certified in gastroenterology.  By reviewing the record, the court determined that Dr. Hammerman learned that the community standard of care did not deviate from the national standard of care by reviewing depositions. The court also determined that Dr. Schmidt had not given a timely affidavit or declaration in response to the motion to summary judgment. The court concluded that the district court had erred in excluding Dr. Hammereman’s testimony only.

The Idaho Supreme Court reversed the order granting summary judgment and remanded the case to the district court for additional proceedings.



North Carolina Court Disallows Expert Testimony About Impact of Methamphetamine Consumption Upon Shooting Victim

A defendant who alleges that he committed a violent act in self-defense must usually establish a reasonable basis for believing that his safety was threatened. Courts have recognized that evidence of drug use may be relevant when the defendant was attacked by a drug user whose violent conduct can be explained by the ingestion of drugs. An expert witness can help a jury understand why the use of a particular drug may have caused the attacker’s aggressive behavior, thus posing a threat to the defendant.

The defendant in a recent North Carolina case argued that he should have been allowed to use an expert witness to bolster his theory that he acted in self-defense after being attacked by a methamphetamine user. In an opinion that fails to recognize the important role that expert witnesses play in helping juries understand evidence of drug intoxication, an appellate court affirmed the decision to disallow the expert testimony.

Facts of the Case

Shirley Hollifield left her home at midnight to put gas in her car. A man confronted her. The man was later identified as Chris English. Hollifield texted Jerry Echols, the boyfriend with whom she lived, to tell him about the confrontation. She was sobbing when she returned home twenty minutes later.

Echols wanted to know why English had approached Hollifield late at night. Echols and Hollifield drove to a neighborhood where they spotted English. They testified that English was babbling before he got down on all fours and started growling at them. English then charged at Echols and Hollifield.

English fought with Echols, who got on top of him. After Echols let English go, English again got on all fours, started growling, and rushed toward Echols. Echols pulled a handgun from his pants and shot English. Echols testified that he believed English was armed. Echols and Hollifield then drove away.

English had been a regular user of methamphetamine since his release from prison about a year earlier. English suffered from paranoia and hallucinations. On the night of the shooting, English was “talking crazy” and “not making any sense” before he was seen to use drugs. He then began smoking methamphetamine with other users. One of those users testified that English was growling like a dog when she last saw him.

The police discovered English’s body at 1:00 a.m. A couple of days later, Echols fled from a police officer who tried to pull him over for running a red light. The officer arrested Echols and, during a search of his car, found the handgun he used to shoot English.

Expert Evidence

Echols was charged with murder. At his trial, an expert witness testified that she matched Echols’ handgun to the shell casings found at the scene of the shooting.

Echols wanted to introduce the expert testimony of Wilkie A. Wilson, a neuropharmacologist. Wilson would have testified that English’s aggressive and bizarre behavior was consistent with methamphetamine intoxication. Echols contended that Wilson’s testimony would have bolstered his contention that he was acting in self-defense after being attacked by a person who was seemingly deranged.

The trial judge ruled that Wilson’s proposed testimony was based on speculation rather than a reliable application of scientific principles and methods to the facts of the case. The defense countered that the evidence established English’s use of methamphetamine and that Wilson’s specialized knowledge of the behavioral effects of methamphetamine ingestion supplied a reliable basis for his expert opinion.

The trial judge also ruled that the relevance of Wilson’s testimony was outweighed by its prejudicial nature because English was behaving strangely before he ingested methamphetamine. Yet there was no evidence that English was behaving aggressively, much less getting on his hands and knees and growling like a dog, until he used the drug.

Appellate Analysis

In a decision that strikes a blow to the ability of defendants to use expert witnesses to educate juries, the North Carolina Court of Appeals ruled that Wilson’s testimony was inadmissible. According to the court, Wilson’s testimony was not supported by sufficient facts and was therefore speculative. The court noted that Wilson did not examine English, but failed to explain why an examination was necessary to opine about the pharmacological effects of methamphetamine ingestion.

Wilson based his opinion about English’s drug use on the testimony of other witnesses, as experts are entitled to do. Those witnesses saw English smoking methamphetamine. Wilson explained that abundant studies prove that methamphetamine ingestion causes the kind of behaviors that English exhibited. That evidence supplied a factual basis for Wilson’s conclusion that English was suffering from methamphetamine intoxication when he attacked Echols.

The trial court ruled that there was “a real problem” concerning whether the facts upon which Wilson relied were correct. But deciding whether facts are correct is the jury’s duty. Courts improperly deny parties the benefit of a jury determination when they take it upon themselves to decide disputed facts. Since the evidence would have permitted the jury to rely upon the facts that informed Wilson’s opinion, the opinion should not have been rejected simply because the court had a “real problem” with those facts.

The trial court drew a distinction between testimony that methamphetamine makes people behave in the way that English behaved — a conclusion that, as the court conceded, is well established by science — and testimony that English was violent because he used methamphetamine. That distinction is illusory. Would a court say that an expert can testify that alcohol impairs driving but disallow testimony that the driving ability of a driver who drank a bottle of bourbon was impaired by alcohol consumption?

Courts routinely allow experts to draw conclusions about human behavior, at least when the experts testify for the prosecution. Disallowing Echols the opportunity to use an expert in his defense was plainly unwarranted.


Expert Who Did Not Keep Time Records Deemed Unqualified to Testify in Maryland Medical Malpractice Case

At the urging of the medical and insurance industries, Maryland adopted an unusual law that limits the ability to call an expert witness in malpractice cases. At the time Brown v. Falk & Karim P.A. was litigated, Maryland law prohibited the use of an expert witness in malpractice cases if the expert spent more than 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his or her professional time acting as an expert witness.

The question in Brown was whether an expert’s word about the time spent working as an expert witness is sufficient to satisfy the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule. On appeal, the court decided that an expert should be prepared to surrender detailed time records to prove the percentage of time spent in medical practice versus the time spent as an expert witness.

Facts of the Case

Brenda Brown sued Dr. Joel Falik for medical malpractice after her husband died. Brown alleged that Falik’s negligence during her husband’s back surgery caused her husband’s death.

Maryland law required Brown to certify, at the time the lawsuit was filed, that her case was supported by an expert opinion. Brown certified that Dr. Sanford Davne, an orthopedic surgeon, would testify that Dr. Falik failed to recognize that Brown’s husband was a high-risk patient and failed to advise Brown’s husband about less dangerous treatments for his back pain.

Dr. Davne’s certification stated that less than 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his annual activities were devoted to testifying as an expert. Dr. Davne testified in a deposition that the statement was accurate, but explained that he kept no records of time devoted to expert witness work and time devoted to other work.

The trial court eventually ordered Dr. Davne to produce his tax returns. The defense apparently regarded his income from various kinds of work as a proxy for the amount of time he spent working to produce that income.

At trial, the defense claimed that Dr. Davne had not produced sufficient tax returns to prove that he satisfied the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule. The judge denied a motion to disqualify Dr. Davne and denied a motion for judgment after Brown presented her case.

The jury returned a verdict in Brown’s favor and awarded her more than $900,000 in damages. The judge eventually concluded that Dr. Davne was not qualified to testify and granted a motion for judgment notwithstanding the verdict. Brown appealed.

The 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} Rule

For decades, the medical and insurance industries have worked diligently to make it more difficult for victims of medical negligence to prove their cases. Some of their efforts have focused on vilifying experts who testify for plaintiffs. Compliant legislators have responded to industry lobbyists by enacting a variety of laws to prevent qualified experts from testifying for plaintiffs.

Maryland’s 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule was one such law. The law was later amended to exclude expert witnesses who devoted more than 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of their time to testifying as an expert during the previous year.

The fact that a doctor often testifies as an expert has no rational relationship to whether the doctor is competent to testify. While the medical and insurance industry refers to such experts as “hired guns,” they use that term exclusively to refer to experts hired by plaintiffs. Insurance companies hire the same experts to testify over and over in toxic tort cases, but they never refer to their own experts as hired guns. Whether the frequency of testimony affects an expert’s credibility is a decision that should be made by juries, not by legislators who serve the interests of corporate lobbyists.

As the Baltimore Sun argued, the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule is an arbitrary standard. It applies only in medical malpractice cases because the insurance industry knows how difficult it is for plaintiffs to find a doctor who is willing to testify against another doctor. Brave experts who are willing to give truthful testimony in response to a malpractice epidemic are in demand, so the insurance industry strives to limit their availability.

Notably, nobody claims that Dr. Davne’s lacks the training or experience to advance an expert opinion. Nor does anyone claim that, but for the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule, a jury would not be entitled to accept Dr. Davne’s testimony as credible. The 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule therefore took compensation away from the widow of a malpractice victim that a jury decided she deserved.

Appellate Opinion

At the time of trial, Maryland law required a plaintiff to prove that the expert witness did not “devote annually more than 20 percent of [his] professional activities to activities that directly involve testimony in personal injury claims.” Maryland courts view the statute as requiring a mathematical calculation. Courts divide the amount of time that the witness is directly involved in expert testimony by the amount of time that the witness spends performing all professional activities.

After disavowing the need for an “exhaustive accounting of an expert’s timesheets,” the court criticized Dr. Davne for failing to produce timesheets that accounted for the time he spent on patient care and other professional activities. The court also faulted him for not producing a list of every case in which he had ever provided services as an expert.

Dr. Davne did provide an affidavit that described the time he spent on professional activities and expert witness activities, but Dr. Davne’s word was not good enough for the appellate court. He also produced his tax returns, but the court wasn’t satisfied that a calculation could be made from the income information supplied to tax authorities.

The court also thought that Dr. Davne’s testimony about the income he received from expert testimony undermined his affidavit. Since expert testimony often commands a higher hourly rate than other work, it is difficult to correlate time spent on an activity with income received from that activity. In any event, the court of appeals agreed that Dr. Davne’s failure to produce detailed records of his time spent as an expert and in professional practice disqualified him from testifying.

Lessons Learned

Whether an expert has the training, experience, and knowledge to opine about a standard of care is wholly unrelated to how much time the expert devotes to giving that testimony. The Maryland rule harms malpractice victims by depriving juries of valuable testimony while shielding negligent doctors from the consequences of their malpractice.

In light of the Maryland rule, however, plaintiff’s lawyers bringing malpractice cases in Maryland must be careful to select experts who keep track of the time they spend in their professional practices and the time they spend working as an expert witness. Gathering that data will not be as easy as the court seems to suggest.

Since billing records do not reflect the hours a doctor spends reading medical journals or engaging in other nonbillable work that is part of the practice of medicine, witnesses may need to estimate their hours in practice by examining the hours they spend in the office (or attending continuing education seminars) each year. They can probably rely on hourly billing records to determine the time they spend testifying as an expert witness. Doctors who regularly testify as experts should take note of Maryland law and retain those records so that they are qualified to testify in Maryland.



Utah Supreme Court Rules That Expert Testimony Went Too Far

The Utah Supreme Court has ruled that a district court went too far when it allowed an expert to offer undisclosed causation testimony.

The Injury

Noe Arreguin-Leon was injured while installing an exit sign on the shoulder of I-15. A driver had fallen asleep at the wheel and the car veered off the road and into a ladder, where Arreguin-Leon was standing.

At the time of his injury, Arreguin-Leon was employed by Highway Striping & Signs. This company had been hired by Hadco, a general contractor, to install signage for the Utah Department of Transportation. Part of Hadco’s task was to implement a “traffic control plan” to protect workers from traffic and drivers from the construction site. Hadco had failed to do so. At the time of Arreguin-Leon’s accident, there were no traffic control measures in place.

Arreguin-Leon suffered significant injuries and sued the driver and Hadco.

District Court

In district court, Arreguin-Leon retained Bruce Reading to testify as an expert on traffic control standards. Hadco’s counsel chose to depose Reading instead of receiving an expert report. At trial, Reading testified “that Hadco or its subcontractor had violated five specific engineering practices, regulatory standards, and contractual provisions and that there was no traffic control plan in place at the accident site.”

Arreguin-Leon’s counsel asked Reading, “If [200 yards from the construction project is] where [the driver] started to exit the roadway, what effect would a correctly installed buffer zone have had on his driving?” Hadco’s counsel objected, arguing that this testimony was going toward causation and was beyond the scope of the opinion that was disclosed. Arreguin-Leon’s counsel argued that because a deposition had been elected instead of a report, Reading’s testimony was not limited. The court overruled the objection.

Reading testified that a proper traffic plan would have included an area where the driver would have to have hit one or more plastic barrels and “would have had closer to six seconds to wake up and take corrective action.” He also testified that if the accident had still taken place, it would not have taken place in the same location.

A jury ultimately found that Hadco was partially liable for Arreguin-Leon’s injury. Hadco appealed.

Court of Appeals

On appeal, Hadco argued that the district court erred by allowing Reading to offer an undisclosed opinion on causation. Arreguin-Leon argued that Hadco could not make this argument without relying on the expert disclosures and deposition transcript, but these were not a part of the trial record. The court of appeals acknowledged that these documents were not officially part of the trial record, but considered them because of the unique facts of the case.

The court of appeals concluded that the district court abused its discretion in allowing Reading to testify about causation at trial. It determined that the error was harmful and required a new trial.

Utah Supreme Court

Arreguin-Leon petitioned the Utah Supreme Court for certiorari. The court granted his request.

In reviewing the case, the court determined that the expert disclosures and deposition transcript were not necessary to Hadco’s argument or the court of appeals’ ruling. The court noted that the fact that a party’s opponent chooses a deposition instead of an expert witness report does not mean that the expert’s trial testimony can be a “free-for-all.”

The Utah Supreme Court agreed with the court of appeals that Reading improperly testified about causation and that the error was harmful. The court affirmed the court of appeals’ decision and remanded the case to the district court for a new trial.


New Damages Trial Granted Because Jury Ignored Expert Testimony

Bradley Myers sued Frank Sebastianelli and his business, Ameripride Fence Company, for personal injuries. Myers was employed as a truck driver. He delivered materials to Sebastianelli’s company. The only forklift at Ameripride was inoperable, so Myers attempted to unload the materials by hand.

Bundles of pipe were placed across dunnage (similar to landscaping timbers) on the floor of the truck. The dunnage allows the fork of a forklift to slide beneath the bundles of pipe. As Myers was attempting to unload the pipe, a piece of dunnage swung in his direction, fracturing the tibia and fibula in his left leg. He also suffered a torn rotator cuff in his shoulder.

Myers argued that Sebastianelli was negligent for failing to supply a working forklift to unload the materials from the truck. A jury apportioned negligence to each party, finding that 51{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the fault for the accident rested with Sebastianelli while attributing the remaining 49{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to Myers.

Expert Testimony

Myers supported his claim for damages with expert testimony from several witnesses. An orthopedic surgeon testified that he surgically inserted a metal rod in Myers’ leg. Myers needed a second surgery after he developed compartment syndrome. Following that surgery, he developed chronic regional pain syndrome, accompanied by swelling in the leg. The surgeon testified that the pain syndrome is a permanent condition that prevents Myers from returning to his former work. The surgeon later removed the rod and discussed amputation as an alternative to living with the pain.

A reconstructive surgeon testified about treating wounds to Myers’ leg following the surgery and the permanent scarring that those wounds caused. An expert in rehabilitative medicine testified about limitations in Myers’ leg that make it difficult for him to walk. The doctor testified about pain treatment for Myers’ syndrome and confirmed that Myers is only able to work at light duty jobs involving very limited standing or sitting and no climbing or significant lifting.

Another orthopedic surgeon testified about surgical repairs made to Myers’ torn rotator cuff. The parties agreed that the cost of medical care Myers had received for his leg and shoulder injuries to date was about $530,000.

An expert in nursing, nurse life-care planning and projecting future medical costs testified that the future cost of pain management and medical treatment will be about $910,000. Additional costs of about $200,000 will be incurred if Myers elects to have an amputation and to use a spinal stimulator to ease his pain.

Finally, Myers offered the testimony of a vocational expert and forensic economist. That expert calculated that the injuries caused Myers to lose wages and benefits of about $212,000. He testified that Myers’ loss of future earning capacity and benefits has a value of about $1 million.

Challenge to Jury Verdict

The defense did little to challenge the expert testimony regarding Myers’ damages. The defense focused instead on liability. It succeeded to the extent that the jury found Myers to be 49{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} at fault. Under North Carolina law, that finding caused he amount the jury awarded to Myers as damages to be reduced by 49{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}.

Inexplicably, the jury awarded Myers nothing for past or future medical expenses. It also awarded nothing for lost earnings or loss of future earning capacity. The jury awarded $500,000 for past and future pain and suffering.

Myers moved for a new trial. He argued that the expert testimony established that he had incurred medical expenses and a wage loss because of his injuries. The expert testimony also related his wage loss and loss of future earning capacity to his accident injuries. Myers contended that the jury had no basis for ignoring the expert testimony when it awarded him no damages for those losses.

The trial court decided not to disturb the jury verdict for pain and suffering. It did, however, award Myers a new trial regarding his economic damages.

Appellate Decision

Both parties appealed from the order granting a new trial. Sebastianelli argued that juries decide damages and that the jury had spoken. In the absence of any argument that Myers received an unfair trial, Sebastianelli asked the appellate court to respect the jury’s decision.

The Pennsylvania Superior Court agreed that jury verdicts are not typically disturbed, but it concluded that the trial court did not abuse its discretion in granting a new trial as to economic damages. Pennsylvania law permits a damages verdict to be “set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or that the jury disregarded the instruction of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff.”

The jury found that Sebastianelli was negligent and that his negligence caused harm to Myers. No evidence suggested that any other cause contributed to those injuries. Medical expenses were obviously part of the harm that Sebastianelli’s negligence caused. Expert testimony established that Myers’ accident injuries required medical attention. Sebastianelli offered no expert evidence to the contrary.

The parties stipulated to the amount and reasonableness of Sebastianelli’s past medical expenses. The jury was not free to disregard that stipulation. Nor was it free to disregard uncontradicted expert evidence that the expenses were incurred because of Myers’ accident.

The jury may have had more leeway in awarding future medical expenses, given the absence of a stipulation about the likely amount of those expenses. In addition, there was a factual dispute as to whether the expense of an amputation and/or a spinal cord stimulator should be included in the verdict, given that Myers had refused both treatments.

If the jury had awarded an amount for future medical expenses that was in the ballpark of the expert’s projection, after subtracting the cost of an amputation and spinal cord stimulation, Myers would not likely have been given a new trial as to future medical expenses. However, since the expert testimony that he would need some amount of future health care was uncontradicted, the jury was not free to ignore that testimony and to award Myers nothing.

The same analysis required an affirmance of the trial court’s decision to grant a new trial regarding lost wages. Myers’ serious injuries clearly prevent him from returning to work as a truck driver. While there may have been a dispute about Myers’ alleged failure to mitigate his damages by not agreeing to an amputation or spinal cord stimulation, the expert evidence that he lost income and will continue to lose income because of his inability to work as a truck driver was unchallenged. A verdict of zero was not supported by the evidence.

Jurors Cannot Ignore Uncontested Expert Evidence

Jurors are free to disbelieve expert testimony if they have a rational basis for doing so. The Superior Court agreed with the trial court that there was no rational reason to disregard uncontradicted expert testimony regarding damages.

Sebastianelli argued that the jury may have returned a compromise verdict. While the Superior Court noted that Pennsylvania law regarding compromise verdicts is “murky,” it deferred to the trial judge’s conclusion that the verdict did not result from a compromise.

It is difficult to understand how a rational compromise could have resulted in a decision to award damages for pain and suffering resulting from an accident but not for medical expenses and lost wages resulting from the same accident. The trial judge was in the best position to decide whether the jury’s verdict likely represented a compromise rather than an irrational failure to award damages that were clearly established by the evidence.

Sebastianelli argued that if a new trial is granted, it should address all categories of damages, including pain and suffering, not just economic damages. Myers did not oppose that request, probably because most juries return a larger award for pain and suffering than they award for medical expenses. The appellate court agreed to allow Myers to present expert testimony as to all issues of damages.


California Law Legal System Concept

Expert Witness Testimony Improperly Tossed Out

A California Court of Appeals has reversed a trial court’s summary judgment order and reinstated a wrongful death lawsuit after it concluded that the trial court had improperly thrown out “clear, reasoned” expert testimony.

The Death

In October 2013, Marleny Escobar attended her first prenatal appointment with her ob/gyn, Dr. Azmath Qureshi. She complained of pain with urination and blood in her urine. Her lab tests showed a low white blood cell count and low platelet counts. Dr. Qureshi prescribed her medicine for urinary tract infections.

Over the course of Escobar’s pregnancy, she experienced a fever, a sore throat, congestion, cough, and an earache. Escobar failed to gain weight after her initial prenatal appointment and eventually lost ten pounds. Her urinalysis showed abnormal levels of proteins, ketones, and bilirubin, and her lab results showed that her white blood cell count remained abnormally low. Dr. Qureshi prescribed her an antibiotic and did not order additional lab tests.

In March 2014, Escobar was admitted to the hospital for the early onset of labor. She arrived at the hospital with a fever, an enlarged fatty liver, and gallstones. Her lab work showed that her white blood count was still abnormally low and that she had “severely deranged liver function.”

Escobar gave birth to a healthy son and was transferred to Long Beach Memorial Medical Center where she was treated by Dr. Jennifer McNulty. Within a week, Escobar’s new physician was considering hemophagocytic lymphohistiocytosis (HLH), a rare immunodeficiency disease, as a diagnosis. Within days, Escobar began treatment for HLH. Escobar died on April 17, 2014. Her autopsy confirmed a diagnosis of HLH and a fungal infection throughout her body.

Superior Court

Two years after Escobar’s death, her husband and sons sued Dr. Qureshi for wrongful death. The lawsuit alleged that Dr. Qureshi’s failure to investigate Escobar’s HLH symptoms fell below the standard of care and led to her premature death.

The court dismissed the husband’s claims on the grounds that his case was time-barred. Dr. Qureshi then filed a motion for summary judgment against the remaining plaintiffs, arguing that they failed to prove causation. Dr. Qureshi claimed that Escobar’s symptoms did not meet the criteria for HLH while she was pregnant, therefore he could not have diagnosed her and given her treatment.

The plaintiffs submitted testimony from obstetrician-gynecologist Dr. Paul Sinkhorn, opining that if Dr. Quereshi had investigated Escobar’s symptoms while she was pregnant, it was more likely than not that she would have survived. The trial court did not admit Dr. Sinkhorn’s testimony because he did not have any experience treating patients with HLH. The court also decided that the testimonyt did not raise a triable issue of fact about causation because Dr. Sinkhorn did not opine that Escobar’s “chance of survival would have been greater than 50{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} if Defendants had acted differently.”

The trial court granted Dr. Qureshi’s motion for summary judgment.

California Court of Appeals

The plaintiffs appealed to the California Court of Appeals. On appeal, the Court of Appeals determined that the trial court abused its discretion by striking Dr. Sinkhorn’s testimony. The appeals court noted Dr. Sinkhorn’s more than thirty years of experience working as an obstetrician-gynecologist, the time he served as a professor at several local medical schools, and the time he spent reviewing Escobar’s medical records. The court determined that he was qualified to testify about whether the defendants’ acts or omissions caused Escobar’s death.

The Court of Appeals also stated that Dr. Sinkhorn’s declaration was sufficient to raise a triable issue of fact as to whether Escobar’s chance of survival would have been more than 50{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} if Dr. Qureshi had taken the proper steps to investigate her symptoms. The court reversed the summary judgment order.


Baby powder

New Jersey Court Reverses Order Excluding Causation Experts in J&J Baby Powder Case

Brandi Carl and Dianna Balderrama sued Johnson & Johnson after discovering that they suffered from ovarian cancer. Carl and Balderrama attributed their cancer to their use of Johnson & Johnson Baby Powder. After losing several trials, J&J has stopped marketing the product while continuing to insist that it is not carcinogenic.

Carl and Balderrama’s cases were selected as the first two cases to be tried in multi-county litigation in New Jersey. Johnson & Johnson moved to exclude the opinions of their two causation experts. The trial court granted that motion and then entered summary judgment in favor of J&J. The Appellate Division of the Superior Court of New Jersey reversed the judgment.

The court’s opinion is noteworthy not just for its careful analysis of the evidence, but for its thorough discussion of the admissibility of expert testimony in toxic tort cases. While the insurance industry has condemned nearly all expert testimony offered by plaintiffs in toxic tort cases as “junk science” — and while some judges have echoed that hostility to plaintiffs’ experts — the Appellate Division’s dispassionate analysis is a model for how courts should apply the Daubert decision in cases involving allegedly dangerous substances.

Daubert in New Jersey

In 2018, the New Jersey Supreme Court analyzed the state’s rules of evidence governing the admissibility of expert testimony in civil cases. The court adopted the Daubert factors for assessing the reliability of expert testimony and incorporated them into New Jersey law.

The Appellate Division emphasized that the reliability of a methodology does not depend on whether the trial judge agrees with the expert’s conclusions. The focus is on “the level of intellectual rigor” that the expert displays. If the expert’s methodology is based on sound principles and the expert applies those principles to relevant data in a reliable way, the expert’s testimony is admissible, whether or not the judge is persuaded by the expert’s opinions.

Application of Daubert to Epidemiology

The precise cause of a disease can rarely be determined with certainty, but certainty is not the standard of proof in civil cases. The plaintiffs only needed to prove that asbestos contaminating the talc in baby powder probably caused their ovarian cancer.

Experts typically determine whether exposure to an agent caused a disease by reference to epidemiological studies. Courts regard epidemiological studies as reliable when they reveal an association between an agent and a disease and when the association is probably not the result of a limitation in the study, such as a sampling error.

All of the experts in the case agreed that valid epidemiological studies include cohort studies, which compare exposed and unexposed people over a period of time, and case-control studies, which compare the exposure of people who have acquired a disease to a control group of people who did not. Both types of studies can yield relevant information and neither is necessarily superior to the other. Statistical methods, including a pooled analysis or meta-analysis, may help experts draw conclusions when individual studies are in apparent conflict.

To raise an inference of causation, a study must produce a relative risk (or odds ratio) of more than 1.0, which implies that the association is greater than chance would produce. Study results must also be statistically significant.

When studies permit an inference of causation, experts then decide whether the association reflects an actual causal connection. Experts often rely on the Bradford Hill criteria to distinguish mere association from causation. The appellate court’s thorough review of those factors ends with Hill’s admonition that absolute certainty should never be required to demonstrate causation because science by its nature is based on incomplete knowledge. Experts offer their best understanding, not a perfect understanding.

The Appellate Division noted that experts should be advocates for the truth, not for a party. Experts must therefore consider the entire body of scientific research rather than cherry-picking research results that support the expert’s opinion. Experts are entitled to reject significant evidence that does not support their opinion but they must offer a reasonable explanation for doing so.

Daniel Cramer’s Expert Opinion

A lengthy section of the court’s opinion reviewed the scientific literature upon which the experts for both parties relied. The court noted that neither party claimed the studies were based on unsound methodologies, that they misstated the results, that they evidenced bias, or that they were otherwise unworthy of consideration by the scientific community.

The court then discussed the opinions offered by the plaintiff’s experts. Daniel Cramer, a professor of obstetrics, gynecology, and reproductive biology at Harvard Medical School, has studied the relationship between genital powders and ovarian cancer for many years.

Based on his literature review and his own research, Cramer concluded that the odds ratio for women who used talc-based powders and those who did not was 1.29. He concluded that the odds ratio was statistically significant.

Cramer applied the Bradford Hill criteria and explained his disagreement with other experts about the application of certain factors. He acknowledged shortcomings in the literature, including the inability to standardize a measurement of the amount of powder that women applied or the amount that entered the body. He concluded that recent literature approximated that information by asking subjects about the frequency with which they used powder. That information permitted a dose response analysis that some courts consider to be critical evidence of causation in cases involving unsafe drugs and products.

In addition to expressing the opinion that talc-based powders can cause ovarian cancer (general causation), Cramer assessed the likelihood that talc-based powder caused the ovarian cancers with which Carl and Balderamma were diagnosed. He considered specific risk factors, including obesity, genetic history, and use of oral contraceptives. He assessed the two women in light of studies that most closely matched the factors associated with each woman. While acknowledging the possibility of alternative causes, he identified the use of talc-based powders as the most likely cause of the ovarian cancer that each woman acquired.

The Court’s Correct Understanding of Relative Risk

Cramer explained his disagreement with industry opinions that a relative risk of less than 2.0 is insufficiently strong to create an inference of causation. He noted that no scientist has ever expressed that opinion. As long as bias and other causes of error can be ruled out, there is no magic odds ratio that creates a threshold for inferring causation.

Cramer’s opinion, it should be noted, is contrary to the position adopted by some courts, including a significant number of federal courts. Those courts have concluded that a relative risk of less than 2.0 cannot prove that causation is “more likely than not.” Those courts often confuse general causation, which asks only whether a substance can cause an illness, and specific causation, which asks whether the substance probably caused the plaintiff’s illness.

As a paper for the National Academies of Science explains, judicial insistence on a relative risk of at least 2.0 is based on false assumptions, proving once again that science should be left to scientists. Even a low risk is a risk. General causation does not ask whether a substance probably caused a disease but whether it is capable of causing the disease. The “more likely than not” standard of proof is relevant to specific causation but not to general causation.

Other Expert Opinions

The court evaluated the expert opinions of Graham Colditz, an epidemiologist, on general causation. His expert report reviewed the literature and concluded that genital talc use can cause ovarian cancer.

Colditz carefully explained why he gave greater weight to studies that took a stronger analytic approach than studies that were analytically flawed. Colditz agreed with Cramer that the magnitude of risk need not reach 2.0 to support an inference of general causation.

The court also considered the expert opinions of John Godleski, a Harvard Medical School professor of pathology. He analyzed tissue samples from Carl and Balderrama. He concluded that the tissues contained substantial amounts of talc.

Curtis Omiecinski, a professor of molecular toxicology at Penn State, explained how talc in baby powder can migrate from the perineum to the ovaries. He also explained how talc can cause inflammation that triggers the development of cancer.

Daubert Analysis

The court’s thorough review of the expert reports and the underlying literature convinced it that the trial court erred in excluding the testimony of the plaintiffs’ experts. The experts based their opinions on a significant number of reliable studies. They provided reasonable explanations for giving greater weight to some studies than others. They did not misinterpret the studies or give undue weight to a small subset of studies.

The experts anchored their opinions on reasonable scientific evidence that provides a plausible explanation of the mechanisms by which talc in baby powder enters the body and causes ovarian cancer. They carefully applied the Bradford Hill criteria in reaching opinions about general causation. They met the defendants’ objections to their reasoning with reasonable answers.

The court concluded that the methodologies used by the plaintiffs’ experts were reasonable. The cumulative data used in the studies upon which they relied was sufficient to support their opinions. Attacks on the quality of that data raised questions of credibility which were for the jury to assess.

The trial court erred by weighing the defense evidence against the plaintiffs’ evidence. Competing expert opinions should be weighed by juries, not judges. The trial judge’s preference for cohort studies over case control studies did not find evidentiary support in the record and was contrary to New Jersey precedent.

The trial court’s contention that the plaintiffs’ experts relied on a “made for litigation methodology” missed the point. The question is whether the methodology is reliable. The plaintiffs’ experts used methodologies that are generally accepted as reliable by scientists in their field and based their analysis on sufficient data. That is all that Daubert requires.

Since the trial court overstepped its role by accepting the opinions of defense experts as more credible than those of the plaintiffs’ experts, the court erred by excluding the plaintiffs’ expert testimony. Since summary judgment was based on the exclusion of that evidence, the summary judgment was reversed and the case was remanded for trial.