Litigation: 6 defenses every inside counsel should know (Part 4)

A look at the Exclusion of Experts defense and its real-world applications

This is the fourth of a six-part series on liability defenses that every inside counsel should know (Part 1, Part 2 and Part 3). Based on more than 30 years of litigation practice, this series discusses the liability defenses I have found to most often result in successful summary judgments or dismissals, providing the best potential to end expensive and time-consuming litigation. This installment focuses on the breadth of the current law on exclusion of experts and how that law can be used to position cases for summary judgment or dismissal.

Most everyone knows the basic principles on exclusion of experts set forth by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc. Daubert held that Rule 702 of the Federal Rules of Evidence requires that expert testimony must rest on a reliable foundation and be relevant to the issues presented in the case at hand. Daubert further held that trial judges, when faced with a proffer of expert testimony, must determine at the outset pursuant to Rule 104(a) of the Federal Rules of Evidence whether the expert testimony is sufficiently reliable and relevant to be admissible into evidence. Trial judges were tasked as “gatekeepers” to make a preliminary determination of the admissibility of expert testimony.

Daubert created an important defense in complex litigation. In complex, technical cases, the evidence necessary to submit the case for determination by a jury often rests solely or primarily on expert testimony. If that expert testimony can be excluded, then dismissal of the plaintiffs’ case or summary judgment should follow.

Although many businesspeople know that trial judges review the admissibility of expert testimony, many are not aware of the scope and breadth of other court decisions following Daubert, which have been applied by courts throughout the land to exclude virtually every type of expert witness.

The most significant case in this expansion is Kumho Tire Company Ltd. v. Carmichael. In Kumho Tire, the defendants had successfully moved to exclude the testimony of a tire-failure analyst who opined that a defect in an automobile tire caused a blowout, and the trial court granted summary judgment based on the exclusion of this expert testimony. The 11th Circuit Court of Appeals reversed the summary judgment after finding that Daubert was limited to experts in the scientific context. However, the U.S. Supreme Court held that Daubert’s requirements apply to the testimony of engineers and other experts who are not scientists, and that the trial court’s “gatekeeping” obligation applies not only to “scientific” testimony, but to all expert testimony. Rule 702 of the Federal Rules of Evidence does not distinguish between “scientific” knowledge and technical or other specialized knowledge. Kumho Tire made it clear that the trial court’s “gatekeeping” function to make a preliminary review of the admissibility of expert testimony applies as to the testimony of all experts. The U.S. Supreme Court held that the trial court’s exclusion of the plaintiffs’ engineering expert was proper, because his testimony about the cause of a tire failure was not based upon a reliable foundation.

Since Kumho Tire, trial courts have applied these principles to exclude a wide variety of experts whose testimony was not reliable and relevant. In one recent case, Werth v. Hill-Rom, Inc., a well-qualified team of fire experts were excluded from presenting a finding that a baby warmer caused a hospital fire. The team’s opinion was not admitted after the court found that the experts had not tested their theory and that they failed to properly follow the methodology set forth in NFPA 921 Guide for Fire and Explosion Investigations.

Many other cases, involving a variety of products, have excluded the testimony of engineering experts who attempt to provide evidence of an alleged product defect, including Johnson. v. Manitowoc Boom Trucks Inc. (design of a boom truck crane), Beam v. McNeilus Truck & Mfg. Inc. (design of a garbage truck), and Hayes v. MTD Products Inc. (design of a riding lawn mower).

Daubert and Kumho Tire also have been applied to exclude the testimony of financial and accounting experts who attempt to provide opinions concerning valuation or damages without reliance upon accepted methodologies, including Target Mkt. Publishing Inc. v. ADVO Inc. and U.S. v. Masferrer.

In cases that involve complex scientific, technical or financial issues, expert testimony is usually necessary for the plaintiff to meet the evidentiary requirements of its case in chief and submit the case for determination by a jury. Under Daubert and Kumho Tire, this expert testimony must be reliable and relevant, or it should be excluded, which typically results in a summary judgment for the defense. In many case decisions since Daubert and Kumho Tire, effective challenges to expert testimony have resulted in the early disposition of complex cases without an expensive and time-consuming trial.

Contributing Author

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Jonathan B. Shoebotham

Attorney Jonathan B. Shoebotham is a partner in the Houston office of Thompson & Knight, where he leads the firm’s Complex Tort and...

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