We have posted in the past about how, since 2010, the Sixth Circuit has been far more likely to reverse an exclusion of Daubert testimony than a district court’s decision to admit such testimony (although admittedly the sample size is small). And about two weeks ago, we posted on an additional reversal of a district court’s decision to exclude Daubert testimony, where the Court did not allow contradictory testimony by the injured plaintiff to sway its determination as to the expert’s reliability. This is consistent with our earlier observation that “a district court’s discretion is broader when allowing testimony than when excluding it,” and that “the Sixth Circuit believes that fact-finders, with the assistance of thoughtful cross-examination, are more than capable of weighing the substance and credibility of an expert and his or her opinion.” (Of course, the district court must still ensure that the expert satisfies the basic Daubert criteria – just throwing up your hands and saying “it’s all coming in” is as sure a ticket to reversal as improper exclusion.).
It is apparent that district courts are paying attention to the Daubert climate at the appellate level. Noting the Circuit’s overall trend in a footnote citing our February blog post, the Northern District of Ohio recently admitted testimony from all three challenged experts in a products liability class action (one plaintiff’s expert and two defense experts). Among the three was a “human factors expert” whose testimony had previously been excluded in at least one other case and who had been retained “to address psychological issues in human attention and information processing” and to opine on how disclosure of the alleged concealed product defect would have affected customers’ decisions about purchasing or leasing the vehicles in question. As the Sixth Circuit’s Daubert jurisprudence continues to evolve, it will be interesting to see how these decisions are interpreted (assuming, of course, that they ultimately get tested at the appellate level).