Continuing a recent trend in the Sixth Circuit, expert witnesses have faced difficult challenges so far this year. As we reported, in 2010, the court issued its decision in Tamraz v. Lincoln Electric Company.pdf, 620 F.3d 665 (6th Cir. 2010), which indicated a renewed emphasis on the court’s gate-keeping role in the context of Daubert challenges. In 2011, the court issued two more major decisions regarding admissibility of expert testimony, Pluck v. BP Oil Pipeline Co.pdf (No. 09-4572) (discussed further here) and Thomas v. Novartis Pharmaceuticals Corp.pdf (Nos. 09-6147/6272/6274) (discussed further here). These decisions made it clear that expert testimony would face careful scrutiny by the court.
The court has followed this trend in five significant decisions issued during the first few months of 2012, excluding the expert testimony in three instances. Based on the current case law, proponents of expert testimony must make a careful record before the trial court to support the admission of expert testimony. Opponents of expert testimony should look carefully for weaknesses in a witness’ methodology — an area of attack that has been particularly effective before the court.
Most recently, in Newell Rubbermaid, Inc. v. Raymond Corporation.pdf (No. 10-3912), the court affirmed exclusion of expert testimony in support of a products liability claim and granted summary judgment to the defendant. In that decision, the court focused on various “red flags” that weighed in favor of excluding the testimony: “anecdotal evidence, improper extrapolation, failure to consider other possible causes, and, significantly, a lack of testing.” Furthermore, the alternative design offered by the expert had no basis in the industry. Noting that the availability of anecdotal evidence only should have tipped off the plaintiff that it needed to get a different expert, the court affirmed exclusion of the testimony.
In two criminal decisions in January, the court also excluded expert testimony because the expert was trying to testify beyond the scope of his or her expertise. In U.S. v. Smallwood.pdf (No. 10-6347), the court affirmed rejection of the government’s expert who was going to testify that a knife recovered from a fire was the same knife used to puncture tires on a vehicle outside the scene. The court noted that tool-mark experts did not use objective standards to identify matches, making the training and education of any particular tool-mark expert extremely important. Because the government’s expert had only taken one class involving knife marks (most of her other training involved firearm marks) and did not have any practical experience with knife marks before this case, she was excluded.
In U.S. v. Silber.pdf (No. 10-2695), the court affirmed exclusion of the defendant’s expert. The court noted that the witness may have been qualified to testify about the general appropriateness of using prescription medications for purposes other than those listed on their FDA-approved label, that was not the purpose of the proposed testimony. Instead, the defendant was seeking to introduce testimony regarding the medical appropriateness of prescribing a specific drug to treat a specific condition. Because the witness was a pharmacist, not a doctor, and did not have experience with the specific condition at issue, the testimony was inadmissible.
Even where the court has allowed expert testimony, it has still conducted a detailed review of the testimony before permitting it. In Andler v. Clear Channel Broadcasting, Inc.pdf (Nos. 10-3264/3266), the court reversed the district court’s exclusion of proposed expert testimony on lost earning capacity. In doing so, the court carefully examined the assumptions underlying the expert’s calculation and held that those assumptions were reasonable in light of plaintiff’s situation before her injury. Noting that establishing future damages is inherently imperfect, the court stated that any weaknesses in the assumptions or calculations could best be dealt with by vigorous cross-examination, rather than exclusion of the testimony in whole.
In Clark v. W&M Kraft, Inc.pdf (Nos. 07-4272/4314), the court affirmed admission of medical testimony supported by peer-reviewed information, 30 years of experience, and first-hand examination as reliable. In part, the court’s decision may also have been affected because (1) the plaintiff refused to participate in voir dire of the witness at trial and (2) opened the door to several areas of unflattering medical history that might otherwise not have been relevant.
In sum, Daubert challenges are being taken very seriously by the court, and opponents of questionable expert witness testimony can find substantial support in recent case law.
