In 2010 and 2011, Daubert became a hot issue in the Sixth Circuit after the court reversed a $20.5 million verdict, and then followed that decision up with a line of cases further expounding Daubert’s requirements. Although perhaps less publicized, this trend continued into 2012. Therefore, we thought it would be informative to look back at the Sixth Circuit’s treatment of Daubert since 2010, and in particular where the Court reversed on Daubert grounds.
Over the last four years, the Sixth Circuit has reversed five cases on the basis of the district court’s application of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In fact, in four consecutive cases, the Sixth Circuit reversed the district court’s exclusion of expert testimony. The only case exhibiting the inverse scenario—reversing the admission of expert testimony—is the oldest of the group and is also arguably the most widely discussed: Tamraz v. Lincoln Elec. Co. See, for instance, our take on the decision.
The Sixth Circuit has repeatedly held that district courts serve a “gatekeeping role” under Daubert and Rule 702, and their decisions are reviewed for abuse of discretion. These five cases suggest, however, that a district court’s discretion is broader when allowing testimony than when excluding it. This is consonant with another theme from these cases: 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. Below is a brief description of the Daubert analysis from each case:
- Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 676 (6th Cir. Ohio 2010): Reversed the admission of expert testimony; specifically, that admitted expert testimony regarding causation was unreliable and not harmless. Defendants appealed the admission of expert testimony that manganese exposure caused plaintiff’s Parkinsonism. The Sixth Circuit held that the “etiological component” of the causation conclusion was “at most a working hypothesis, not admissible as scientific knowledge.” Although the hypothesis was plausible—perhaps even correct—it remains “no more than a hypothesis” and, therefore, “is not ‘knowledge,’ nor is it ‘based upon sufficient facts are data’ or the ‘product of reliability principles and methods.’” Despite plaintiff’s assertion that their expert performed a differential diagnosis, he did not, in fact, rule out all other possible causes.
- Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 729 (6th Cir. Ohio 2012): Reversed exclusion of expert testimony; specifically as to future damages. The district court excluded the expert’s testimony because he used a pre-injury average earning capacity that was higher than plaintiff’s actual pre-injury salary. On this basis, the district court held that the methodology was “unreasonable speculation.” The Sixth Circuit reversed, holding that here, where plaintiff—a mother—shifting from part-time to full-time as her kids grew older is not “unrealistic speculation,” and could account for the increased earning capacity. It concluded that using full-time averages for pre-injury earning capacity “may not be particularly strong, but it is not proper for the Court to exclude expert testimony merely because the factual bases for an expert’s opinion are weak.” That is for the fact-finder.
- Dilts v. United Group Servs., LLC, 500 Fed. Appx. 440, 446 (6th Cir. Ky. 2012): Reversed exclusion of expert testimony; specifically, the opinion as to how the roof panel that fell from a structure at the steel plant fell and killed Dilts. The district court excluded the testimony on the basis that plaintiff’s expert “failed to sue valid and reliable principles,” and that his conclusion was “unsupported by the evidence.” The Sixth Circuit reversed, holding that the opinion was within the scope of his expertise, based only on the information obtained in photographs, his own observations of the worksite, and witness testimony, and that he “performed the necessary calculations and sufficiently relied on the laws of physics and mathematics generally employed in accident reconstruction to determine how the panel dislodged and rotated out of position leading to the death of Dilts.” As with Andler, the Court held the question is put to the fact-finder to weigh that evidence.
- Palatka v. Savage Arms, Inc., 535 Fed. Appx. 448, 461 (6th Cir. Mich. 2013): Reversed exclusion of expert testimony from two experts. First, the district court excluded plaintiff’s mechanical engineer expert on the basis that he did not have experience with firearms and, thus, his testimony would not assist the jury as to whether there was a manufacturing defect or design flaw with the firearm. Second, the district court excluded plaintiff’s material sciences expert on the basis that he could not identify the proximately cause of the firearm’s barrel failure or propose a feasible alternative. The Sixth Circuit reversed both exclusions, holding that both experts were within their expertise when they opined as to the cause of the failure—the excess depth of the site hole and the weakness of the metal chosen, respectively. “The scope of [their] expertise, the Sixth Circuit noted, “may cut against the weight given to [their] opinion[s], but it does not affect [their] admissibility.”
- Food Lion, LLC v. Dean Foods Co. (In re Southeastern Milk Antitrust Litig.), 739 F.3d 262, 283 (6th Cir. Tenn. 2014): Reversed exclusion of expert testimony. The district court excluded the expert testimony concerning antitrust geographic market because the method used was unreliable. Reversing, the Sixth Circuit held that the district court misapplied Daubert, and failed to review all the pertinent facts.
We will continue following closely the Sixth Circuit’s Daubert jurisprudence, and will report on any shifts in these trends.