In February of 2014, we posted an analysis of the Sixth Circuit’s dealings with Daubert claims dating back to 2010. Over that four year period, the Sixth Circuit reversed fives cases on the basis of the district court’s application of Daubert v. Merrell Dow Pharmaceuticals. In four of the five reversed cases, the Sixth Circuit reversed the district court’s exclusion of expert testimony; suggesting that a district court’s discretion might be broader when allowing testimony than when excluding it (although the sample size was admittedly small).
Over a year and a half later, it is useful to review the Sixth Circuit’s handling of Daubert issues to see how the Circuit’s guidance has been internalized by the district courts. A sample of appeals that featured a challenge to a district court’s application of the Daubert standard yielded nine results between June 1, 2014 and November 12, 2015. Of those nine cases, only three were from this year. Interestingly, five of the cases dealt with a challenge to the district court’s exclusion of expert testimony, three cases contained challenges to both the exclusion and inclusion of testimony, and only one dealt with a challenge to the inclusion of testimony.
The Sixth Circuit only reversed the district court’s decision in one case, Lee v. Smith & Wesson Corp., the oldest of the nine cases. Consistent with our finding in 2014, the Sixth Circuit reversed the district court’s decision to exclude expert testimony. In Lee, the district court excluded the testimony of the plaintiff’s expert because there were inconsistencies between the expert’s recreation of the events in question and the plaintiff’s testimony. However, in its analysis, the Sixth Circuit explained that “expert testimony is not inadmissible simply because it contradicts eyewitness testimony.”
While the past year and a half has not been as dramatic a time for Daubert jurisprudence, the Sixth Circuit still continues to monitor the application of Daubert, particularly in “battle of the expert” cases. But often the Daubert application avoids hard and fast rules and is more of a case by case determination. We will continue to monitor any changes in the development of the Daubert jurisprudence.