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The Eighth Circuit dismissed the interlocutory appeal of the Rule 706 order in Willis, implying in its two-sentence order that:

(a)   an interlocutory appeal might be possible from an order that requires a party to advance funds to pay the court appointed expert. See Willis v. Palmer, No. 16-3142, 2017 WL 4014978, at *1 (8th Cir. Jan. 4, 2017) (dismissing appeal “without prejudice to the filing of a renewed appeal if the district court orders the State to advance funds for the payment of court-ordered experts”); and

(b)   district courts should be careful to avoid the appearance of partiality when appointing experts under Rule 706. See id. (referencing Karsjens v. Piper, Case No. 15–3485 (8th Cir. January 3, 2017), which concerns arguments by the State that court appointed experts had the effect of making the court an advocate for the plaintiff).

The Willis opinion, and the Eighth Circuit’s dismissal of the interlocutory appeal from that ruling, remain good resources for practitioners and courts when considering issues related to Rule 706 experts.

More recently, in Houston v. Corizon Health Care, 513 F. Supp. 3d 1100 (E.D. Mo. 2021), the Eastern District of Missouri shed further light on the standard under which a court might exercise its discretion to appoint an expert under Rule 706. There, a pro se prisoner moved the court to appoint an independent medical expert “to establish the alleged delay in medical treatment had adverse effects.”  Id. at 1100. The court denied the motion, without prejudice, noting that courts usually “require[e] extraordinary and compelling circumstances to justify appointing an expert witness under this rule[.]”  Id. at 1101 (citations omitted).

The problem for the plaintiff in Houston appears to be that he framed his motion in terms of seeking expert testimony as to the “adverse effects” from the alleged delay in medical treatment. One of the authorities cited in the Houston decision explains that “exceptional cases” in which a Rule 706 expert might be warranted are those “in which ordinary adversary process does not suffice[.]” Malady v. Corizon, No. 1:13CV80 SNLJ, 2013 WL 5835995, at *1 (E.D. Mo. Oct. 30, 2013).

In Houston, therefore, it is not surprising the court denied the motion for an independent expert in that it was premised upon the need for testimony as to the “adverse effects” plaintiff suffered. After all, the plaintiff in Houston presumably “is able to testify to the effect of his medical condition upon him.”  Houston, 513 F. Supp. 3d at 1101.

Of course, it would seem that the plaintiff in Houston also likely will need expert testimony addressing the medical standard of care, and on that topic plaintiff likely cannot testify. Thus, it also is not surprising that the court in Houston denied the motion to appoint independent counsel without prejudice. See id.

As always, if you should have any thoughts or feedback on this column, please do not hesitate to contact me.

Patrick J. Kenny serves as the Editor-in-Chief of Daubert Online and served for many years as a member of and Expert Witness Chair for the Steering Committee for DRI’s Commercial Litigation Committee. He is a partner with Armstrong Teasdale LLP where he chairs the firm’s Class Action Practice Group and is an active member of the firm’s Insurance Coverage and Litigation Practice Group and the Appellate Practice Group. He has received numerous recognitions for his insurance and commercial litigation practices including listing by Best Lawyers® as the 2016 Insurance Law “Lawyer of the Year” in St. Louis. He also long has been listed as a “Super Lawyer” by Missouri/Kansas Super Lawyers / Super Lawyers Business Edition, he has an AV rating in Commercial Litigation and as an Appellate Lawyer by Martindale-Hubbell and American Lawyer Media (ALM), and he is included in Chambers USA’s listing of America’s Leading Lawyers for Business in its Missouri insurance listing. He previously served as a judicial clerk to the Hon. Pasco Bowman (U.S.C.A., Eighth Circuit). He handles complex litigation and appellate matters including bad faith and insurance coverage disputes, ERISA litigation (pension and benefits), statutory actions, and matters involving fraud, non-compete agreements, and trade secrets. He has tried jury cases to verdict in Missouri and Illinois, handled and supervised numerous appeals, and served as a neutral in scores of cases. He can be reached at Armstrong Teasdale LLP, 7700 Forsyth Blvd., Ste. 1800, St. Louis, MO 63105, (314) 552-6613 (direct), (314) 612-2262 (direct fax), email: pkenny@armstrongteasdale.com. For further information click on: http://www.armstrongteasdale.com/patrick-kenny.

In this subrogation case, Allstate sued LG Electronics USA, Inc. (“LG”) for damage sustained in a house fire. Id. at *1. Allstate alleged an LG refrigerator malfunctioned and caused the fire. Id. Firefighters investigated the fire scene and determined that the fire started in the refrigerator. Id. Allstate retained an electrical engineer, Christoph J. Flaherty, to provide expertise regarding the fire’s cause and origin. Id. Mr. Flaherty reviewed photographs of the scene, other experts’ reports (including those of the firefighters who investigated the fire), the homeowners’ testimony, and “documentation related to the refrigerator.”  Id. After this review, Mr. Flaherty concluded that the fire started in the top half of the refrigerator. He also concluded that the fire had two possible causes, both of which he opined pointed to a manufacturing defect:  (1) the heater circuit insulation failed due to mechanical damage sustained over years of use; or (2) combustible food storage containers were close to the internal light fixture and ignited. Id.

LG sought to exclude these opinions on the ground that Mr. Flaherty failed to identify a single cause of the fire. Id. at *3. LG argued his opinions were unhelpful and could not be rendered to a reasonable degree of scientific certainty because they were inconclusive as to cause. In rejecting these arguments, the court reasoned that under the malfunction theory of product liability, the plaintiff can rely on circumstantial evidence to show evidence of a malfunction, evidence that the malfunction was not caused by misuse, and evidence eliminating possible secondary causes of the malfunction. Id. at *3–4. Given this theory, the court explained, Mr. Flaherty’s opinions would be helpful to a jury and relevant even though he offered two possible causes of the fire. Id. at *4. Specifically, the court explained that both of Mr. Flaherty’s possible causes of the fire ruled out unreasonable use by the homeowners and other possible secondary causes. Further, if either of the possible causes he set forth were determined to be the actual cause of the fire, it would point to a manufacturing defect. Id. Therefore, under the applicable underlying law, Mr. Flaherty need not narrow his opinion to a single cause of the fire for his opinions to be admissible and made “to a reasonable degree of scientific certainty.”

LG also sought to exclude Mr. Flaherty’s opinions on the ground that Mr. Flaherty did not properly apply the National Fire Protection Association (NFPA) standards in forming his opinions. Id. LG pointed out that Mr. Flaherty did not physically test his hypotheses to eliminate them. The court dismissed this argument, explaining that under the NFPA Guide for Fire and Explosion Investigations, the expert must develop hypotheses and eliminate the hypotheses that are not possible given the evidence. But the NFPA standards do not require physical experimentation. Mr. Flaherty’s observation of evidence, review of deposition testimony, and his analysis informed by his electrical engineering background were sufficient to meet the NFPA standards, and his opinions were admissible. Id.

The court in this case relied heavily on the malfunction theory of recovery to allow the expert to avoid identifying a single cause of the fire. Further, the court relied on the NFPA to determine that the expert need not conduct physical testing to render reliable opinions. In moving to exclude an expert or in responding to a motion to exclude, incorporating the underlying relevant law into your Rule 702 analysis can be persuasive.

 Mark D. Jicka is a member of Watkins & Eager PLLC in Jackson, Mississippi, where he has practiced since 1991. He is currently on the Steering Committee for DRI’s Products Liability Committee and serves as the Expert Witness Chair for that Committee. His practice focuses on defending manufacturers at trial and on appeal. He has handled cases for clients in Mississippi, Alabama, Tennessee, Arkansas, Louisiana, and Kentucky. He also has significant experience in defending large corporations in multi-plaintiff catastrophic causes of action involving both federal and state law. He has served as regional and national counsel regarding discovery issues for both manufacturers of components and finished products. He has also won numerous motions to exclude experts under both Daubert and Frye in both federal and state courts. Mark was selected as a Mid-South Super Lawyer 2006–2009 (Arkansas, Mississippi, and Tennessee) for General Litigation and Personal Injury Defense: Products, and is listed in The Best Lawyers in America (2010, Product Liability). Mark can be reached at Watkins & Eager PLLC, P.O. Box 650, Jackson, Mississippi, ph. 601-965-1900 or by email at mjicka@watkinseager.com.

Caroline K. Ivanov is an associate with Watkins & Eager PLLC in Jackson, Mississippi. Prior to joining Watkins & Eager, she served as a law clerk to the Honorable Leslie H. Southwick, United States Court of Appeals for the Fifth Circuit. Her practice focuses on the areas of health care, tort, and general litigation. During law school, she served as an associate editor on the Law Review, and was a member of the Moot Court Board. Caroline can be reached at Watkins & Eager LLC, P.O. Box 650, Jackson, Mississippi, ph. 601-965-1986 or by email at civanov@watkinseager.com.

The opinion opened with a reminder of trial courts’ “gatekeeping” function—emphasizing its crucial role in products liability cases:

Federal Rule of Evidence 702 appoints trial judges as “gatekeepers of expert testimony” to protect the judicial process from “the potential pitfalls of junk science.” If a trial court abdicates that duty by opening the gate indiscriminately to any proffered expert witness—particularly one with whom it recognizes “legitimate concerns”—it risks exposing jurors to “dubious scientific testimony” that can ultimately “sway[]” their verdict. That risk is notably amplified in products liability cases, for “expert witnesses necessarily may play a significant part” in establishing or refuting liability.

Id. at 275 (without internal citations) (emphasis added).

Expect to see this last sentence quoted in countless Fourth Circuit Daubert briefs in future products cases.

In Sardis, plaintiff’s husband worked for a distributor of a garage door manufacturer. After a garage door hood he was transporting became stuck on a truck’s ladder rack, he climbed up to dislodge it. That hood was in a long rectangular box, which was cardboard except for a series of wooden slats on either end. When the slat he was tugging gave way, he fell and hit his head on the pavement. He died of his injuries two weeks later.

Plaintiff brought a products liability claim under Virginia law against the manufacturer. She offered two experts to support her respective claims that (1) the box’s wooden slat ends were negligently designed, and (2) defendants failed to warn against using the ends as handholds.

The defendant manufacturer moved in limine to exclude both experts’ testimony under Daubert and Rule 702. The court denied the motion in a “cursory fashion.” It held that any reliability concerns could be addressed through cross-examination, contrary evidence, and careful instruction on the burden of proof. Those were issues of weight, the trial court observed, not admissibility.

After the jury returned a $4.84 million verdict, defendant renewed its motion for judgment under Rule 50(b), again asserting that both experts’ opinions were irrelevant and unreliable and should have not been admitted. That was likewise denied.

On appeal, the Fourth Circuit agreed with defendant that the trial court erroneously admitted unreliable and irrelevant expert testimony. Noting that the risks inherent to expert testimony are “notably amplified in products liability cases,” the court ultimately observed that, because of the wide latitude Rule 702 grants experts, the trial court’s Daubert/Rule 702 gatekeeping function “cannot be overstated.” Put differently, trial courts should not relegate their gatekeeping function to mere weight of the testimony.

The Fourth Circuit turned first to the plaintiffs’ design expert, Sher Paul Singh, Ph.D. At trial, he opined that (1) the box failed to satisfy the relevant industry design standard, (2) the defendant had failed to test the box design, and (3) those failures proximately caused decedent’s death. The Fourth Circuit, applying the abuse of discretion standard, found his testimony inadmissible under Daubert.

The court recognized that the trial court had impermissibly delegated to the jury whether the expert’s offered standard imposes duties on the defendant (instead treating it as a legal question for court). And even if the trial court had found that the standard applied, that same expert testified that his offered standard wouldn’t have applied to the defendant’s container, even though he used it as a benchmark. The court found the expert’s “testing” opinion was likewise unexplained: he never identified for the court which standards applied, instead asking the jury to “Google” it.

The Fourth Circuit likewise faulted the admission of plaintiff’s failure-to-warn expert, Michael S. Wogalter, Ph.D. A self-described expert on “human factors,” he opined that (1) defendant “should” have known of the dangers through an (undefined) hazard analysis, (2) the lack of warnings about the hazards of pulling the handholds made the product unreasonably dangerous, and (3) those failures proximately caused decedent’s death.

But the Fourth Circuit found his opinions irrelevant and unreliable. To begin with, Dr. Wogalter’s “should” testimony was incongruent with Virginia law, which had a “reason to know” standard, and therefore irrelevant. And the court recognized that his testimony, even if relevant, was not reliable. In the end, Wogalter’s testimony that an undefined hazard analysis would have uncovered the hidden dangers of the design met none of Daubert’s reliability hallmarks. Not testing, peer review, literature, rate of error, or general acceptance.

The court closed by noting that its thorough expert admissibility treatment was well supported by the April 2021 proposal from the Advisory Committee on Evidence Rules. It quoted the committee’s observation that “many courts have held that the critical questions of the sufficiency of an expert’s basis [for his testimony], and the application of the expert’s methodology, are generally questions of weight and not admissibility.” The committee bluntly continued that such “rulings are an incorrect application of Rules 702 and 104(a) and are rejected by this amendment.”

When moving to exclude an opponent’s experts, practitioners should be well armed with Sardis in emphasizing a trial court’s gatekeeping function under Daubert/Rule 702 and rejecting opponents’ frequent invocation of the jury’s role in deciding the weight of the evidence as eclipsing the judge’s Rule 702 obligations. These are separate steps that cannot be conflated.

Derek M. Stikeleather is a partner and chair of the Appellate Practice Group at Goodell, DeVries, Leech & Dann LLP in Baltimore, Maryland. He practices primarily in the areas of appellate advocacy and complex litigation with an emphasis on product liability, antitrust, medical malpractice, and class action defense. He has represented Maryland’s most prominent medical institutions and several medical device and pharmaceutical manufacturers, including Pfizer Inc, Dentsply International, Eisai Inc., DePuy Orthopaedics, and Hanger Prosthetics & Orthotics in federal and state court proceedings. He has argued in the appellate courts of Maryland, New York, California, and the District of Columbia, and numerous federal circuit courts of appeals. He is an editor and frequent contributor to the Maryland Appellate Blog. After graduating from law school, Mr. Stikeleather served as a Law Clerk to the Hon. William M. Nickerson in the United States District Court for the District of Maryland.

Matthew H. Tranter is an associate at Goodell, DeVries, Leech & Dann LLP in Baltimore, Maryland. He practices primarily in the area of complex commercial litigation with an emphasis on product liability, intellectual property, and class action defense. He has argued in the Court of Special Appeals and authored winning briefs there. After graduating from the University of Virginia School of Law, Mr. Tranter served as a Law Clerk to the Hon. Peter B. Krauser of the Maryland Court of Special Appeals.

A PTSD diagnosis presents an opportunity for plaintiffs to attach scientific or medical weight to what would have been considered under the nebulous label of “emotional distress” in the past. Additionally, some experts misinterpret or misrepresent recent medical research into the neurobiological effects of PTSD, arguing that PTSD causes permanent physical changes in brain structure or chemistry that push PTSD more towards the realm of traumatic brain injury than emotional distress.

PTSD is a specific psychiatric condition with standardized criteria that must be satisfied in order to qualify a person for the diagnosis. Thus, while some degree of emotional distress could be common or even expected following a traumatic accident, only a fraction of people exposed to trauma—even trauma severe enough to qualify for a PTSD diagnosis—actually develop clinical PTSD. PTSD is therefore not a typical or inevitable reaction to experiencing a traumatic event, and close scrutiny of the diagnosis under Daubert is often necessary in cases involving relatively minor incidents.

In Vaughn v. Hobby Lobby Stores, Inc., No. 6:19-cv-00293, 2021 U.S. Dist. LEXIS 95527, at *1 (W.D. La. May 19, 2021), the Western District of Louisiana addressed the issue of whether the plaintiff’s PTSD diagnosis was the product of reliable scientific inquiry where the incident alleged to have caused injury was objectively minor, but the plaintiff nonetheless subjectively believed that her injury was serious. The plaintiff was shopping at a Hobby Lobby store when several picture frames allegedly fell off a top shelf and struck her. The plaintiff testified that she “suffered no real objective physical injury at the scene, required no medical attention the day of the incident, walked to the manager’s office, and completed the Incident Report in her own handwriting while her sister and mother continued to shop.”  Id. at *10. She then shopped for another ten minutes, drove her mother and sister home from the store, and followed up with her primary care physician a few days later. The plaintiff asserted that in addition to severe head and neck injuries, she suffered from PTSD as a result of the incident.

Hobby Lobby moved in limine to exclude the PTSD diagnosis under Daubert, arguing that the DSM-5’s first criterion had not been met. This criterion requires “exposure to actual or threatened death” or “serious injury.” Given the  circumstances of the incident and the fact that the plaintiff suffered no serious injuries at the scene, Hobby Lobby argued the plaintiff had not been exposed to “serious injury” per the DSM-5’s Criterion A.

The plaintiff’s expert who had issued the PTSD diagnosis explained that, although the injury was objectively minor, “her diagnosis rests on Vaughn’s own perception that this incident caused her serious injury.” Hobby Lobby responded that such an analysis ran afoul of the DSM-5’s “obviously objective nature” and that the plaintiff’s activities following the incident undermined even her claim of subjectively believing in the serious nature of her injury. Hobby Lobby further noted that the plaintiff’s other treaters had ruled out a PTSD diagnosis and that the doctor who issued the diagnosis had not performed any formal testing for malingering despite knowledge that the plaintiff was involved in litigation.

In response, the plaintiff argued that Hobby Lobby’s objections to the PTSD diagnosis were based solely on the defense attorneys’ lay opinion  regarding what the DSM-5 requires, and was not an appropriate basis for invalidating and excluding the medical opinion of a qualified mental health practitioner.

The court found that the PTSD diagnosis was “the exact type of ‘it is so because I say it’s so’ opinion that the Fifth Circuit has confirmed is inadmissible as nothing more than ‘credentials’  and subjective opinions.’” Id. at *18–19, quoting Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007). The court noted that the expert had ignored the DSM-5’s “obviously objective nature of the DSM-5” and therefore incorrectly applied its diagnostic criteria. Instead, the expert had placed too much emphasis on the plaintiff’s “self-serving belief that she has PTSD.” Id. The court further found that the defense’s objection was not based on attorneys’ lay analysis of the DSM-5, but was supported by the testimony of other physicians.

The court concluded that “Dr. Orazio’s diagnosis does not follow the DSM-5 criteria and therefore lacks scientific methodology, rendering it unfounded and unreliable. Without more than credentials and a subjective opinion, an expert’s testimony that “it is so” is not admissible. Id. at *22. It granted Hobby Lobby’s motion to exclude the expert’s PTSD diagnosis.

The court gave considerable weight to DSM-5 itself, stating that the expert’s diagnosis “does not follow the DSM-5 criteria and therefore lacks scientific methodology.” The opinion therefore reinforces the  important role that written, standardized diagnostic criteria, as recognized by the relevant medical or psychological field, should play in addressing the scientific validity of mental health diagnoses and claims in litigation under Daubert.

Interestingly, the Southern District of New York reached a different conclusion that same month on a Daubert dispute regarding a disputed PTSD diagnosis. In Rosario v. City of New York, 2021 U.S. Dist. LEXIS 91675 (S.D.N.Y. May 13, 2021) a case alleging emotional distress stemming from a wrongful conviction and imprisonment, the City of New York moved to exclude a PTSD diagnosis on the basis that the expert “did not explicitly walk through each of the eight diagnostic criteria for PTSD provided in the DSM-5.” The court rejected this analysis finding that “none of the expert psychologists in this case, including Defendants’ experts, performed such a formalistic enumeration of the DSM-5’s diagnostic criteria.” The court denied the motion, finding that the expert had mentioned symptoms meeting each of the diagnostic criteria for PTSD in his report. However, other judges have closely applied the DSM-5 criteria in other recent district court opinions. See, e.g., Templeton v. Bishop of Charleston, 2021 U.S. Dist. LEXIS 146312, **15–19 (D.S.C. Aug. 5, 2021) (excluding expert’s diagnosis of dissociative amnesia where expert failed to perform a differential diagnosis to consider whether plaintiff’s memory loss was better explained by other conditions or circumstances, as required by the DSM-5 criteria).

Greg Kendall is a partner at Porter Rennie Woodard Kendall, LLP in Cincinnati, Ohio, where he practices in commercial trucking and transportation litigation. He focuses a substantial portion of his practice on the litigation of traumatic brain injury claims. His areas of interest include the admissibility of advanced neuroimaging techniques, expert opinions on future disease outcomes, and injury causation opinions in cases involving traumatic brain injuries and complex psychological injury claims. He is licensed to practice in Ohio and Kentucky. Contact him at gkendall@porterrennie.com.

Wheeling moved to exclude the plaintiff’s causation expert, Dr. Arthur Frank, challenging the reliability of his methods and the factual basis for his opinions, including his reliance on a letter from plaintiff’s counsel regarding Mr. Kovach’s purported exposure to toxic substances in the workplace. Dr. Frank opined that Mr. Kovach’s exposure to diesel fuel, kerosene, exhaust, pesticides, and herbicides significantly contributed to Mr. Kovach developing cancer. In its analysis, the court immediately noted its reluctance to exclude experts because “rejection of expert testimony is the exception, rather than the rule.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008). The court encouraged litigants to instead undermine experts through cross-examination or contrary evidence, among other advocacy tactics.

Wheeling first argued that Dr. Frank failed to establish general causation because he used sources showing benzene’s correlation with cancer, not that benzene caused cancer. However, the court emphasized that experts do not need to rely on research showing a direct cause-and-effect relationship—associational sources can sufficiently point to general causation. Importantly, the court suggested that it can still exclude experts relying on associations if those experts have other deficiencies, such as failing to review medical records, fact depositions, or available exposure data, but those arguments were not present in this case.

Wheeling also argued that Dr. Frank’s conclusion that diesel and kerosene significantly contributed to Mr. Kovach’s cancer should be excluded and his sources were inapplicable because they dealt with benzene, not diesel or kerosene. The court considered that since diesel and kerosene both contain benzene, Dr. Frank’s choice to focus on benzene (a component of the relevant substance) was permissible. Again, the court advised Wheeling to challenge these studies and their applicability to Mr. Kovach through cross-examination instead of excluding Dr. Frank’s opinion outright.

As for specific causation, Wheeling argued that Dr. Frank’s opinion should be excluded because he solely relied upon a letter from plaintiff’s counsel to craft his opinion. The letter from counsel, which was not part of the record, outlined Mr. Kovach’s work responsibilities and accompanying chemical exposure. The court recognized that relying only on this letter is likely insufficient, as the letter contained mere assumptions. Nevertheless, assumptions become facts upon which an expert can rely if the assumptions have independent confirming support in the record. Because of this, the court allowed plaintiff’s testimony in a subsequent deposition to “independent[ly]” confirm the letter from her own counsel.

Notably, Mrs. Kovach was deposed after Dr. Frank completed his report. Because her testimony aligned with and “independent[ly]” confirmed the assumptions in her counsel’s letter, these assumptions became facts upon which Dr. Frank’s opinion could rest. Thus, the court permitted the opinion, even though these facts were confirmed (1) after Dr. Frank completed his report (2) by plaintiff simply confirming the statements in her counsel’s letter.

Finally, Wheeling argued that Dr. Frank could not establish specific causation or a proper differential diagnosis  because he did not know the intensity of Mr. Kovach’s chemical exposure.

A differential diagnosis is “a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated.” Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 259 (6th Cir. 2001). The Sixth Circuit requires that a doctor performing a differential diagnosis (1) objectively ascertain, to the extent possible, the nature of the patient’s injury, (2) rule in one or more causes of the injury using a valid methodology, and (3) engage in standard diagnostic techniques by which doctors usually rule out alternative causes to conclude as to which cause is most likely. Best v. Lowe’s Home Centers, Inc., 563 F.3d 171, 178 (6th Cir. 2009) (finding no need to quantify the level of exposure where expert completed differential diagnosis).

However, the court noted “fair[ness]” dictates that plaintiffs’ experts do not need to quantify exposure to create reliable opinions. Considering that it was impossible to examine Mr. Kovach, his twenty-five years of exposure overcame the need to quantify. After finding that Dr. Frank adequately completed a differential diagnosis as required by the Sixth Circuit, the court denied Wheeling’s Daubert motion.

The Kovach case illuminates how some courts will avoid excluding experts in Daubert motions, even opinions based on self-serving correspondence from counsel, and instead encourage persuasive advocacy before the jury. For example, the court was willing to accept correlational studies as proof of general causation, even though correlation and causation are definitionally distinct. The court also permitted the expert to research one component (benzene) of a multi-component substance (diesel/kerosene). Likewise, the court did not require the expert to quantify the deceased’s exposure to the cancer-causing component. But most glaringly, the court allowed the expert to solely rely on assumptions written in a letter by plaintiff’s counsel, later confirmed by the plaintiff’s testimony. Litigators should heed the court’s willingness to consider the words of plaintiff and her counsel as independent, regardless of how such testimony is presented, especially where courts like the Northern District of Ohio limit relief to advocacy strategies to minimize a plaintiff’s expert.

Kate Van Namen is a member of Butler Snow’s Litigation Department and Commercial Litigation Practice Group. She is licensed to practice law in Tennessee, Arkansas, and Mississippi and concentrates her practice in the areas of general and commercial civil litigation. Kate has experience handling a variety of business and commercial matters involving claims of breach of contract, interference with business relationships, unfair competition, misappropriation of trade secrets, and other complex litigation. She also routinely counsels and represents clients in all aspects of the construction industry and has experience handling truck and tractor trailer accidents, as well.

Lauren Jones is a commercial litigator with Butler Snow. A Tennessee native, she received her B.A. at the University of Tennessee, double majoring in Global Studies, with a concentration in Global Politics and Economy, and Political Science, with a concentration in Public Administration. She also double minored in Africana Studies and American Studies. She is a recent graduate from Vanderbilt Law School.

At issue was the design of a skid-steer loader that the plaintiff operated as part of his job at a steel mill. Kirk, 991 F.3d at 870. It was a small front-end loader with wheels that, as equipped with a 62-inch bucket attachment and rear-axle counterweights, had a rated operating capacity (maximum load) of 1,420 pounds. Id. The plaintiff and other employees used the loader to scoop up steel scale, a byproduct of the steel casting process, underneath roll lines on the factory’s lower level and carry it up a concrete ramp to a waste pile on the main level. Id. The plaintiff was injured when, after driving the loader up the ramp and approaching the waste pile, he began raising the lift arms that held the bucket to dump the scale, and the loader began to wobble and tip forward. Id. The plaintiff braced one foot on the console near the front opening of the operator cab, but it slipped out of the front of the cab and was crushed when he brought the lift-arm cross-member down on it. Id.

Alleging that the loader was dangerous and defective due to a propensity to tip forward when a 62-inch bucket was used to carry a heavy, dense load, the plaintiff brought a design-defect suit under Illinois law against the loader’s manufacturer. Kirk, 991 F.3d at 870–71. His retained engineer opined that the design using the 62-inch bucket made it “highly likely, if not certain,” that the bucket would be loaded in excess of the rated operating capacity, causing it to tip over, and he opined that a 54-inch bucket would have prevented overload and the loader tipping forward. Id. at 871, 874. The expert opined that the “unreasonably dangerous condition” of the 62-inch bucket directly contributed to the plaintiff’s injuries by causing overloading and subsequent tipping in the plaintiff’s incident. Id. at 871, 875.

The manufacturer challenged, and the district excluded, the proposed testimony under the requirement that expert opinion testimony be “the product of reliable principles and methods.” Kirk, 991 F.3d at 871–72 (citing Fed. R. Evid. 702(c)).

The opinion that the loader was defectively designed when equipped with a 62-inch bucket depended on a load in the bucket exceeding the rated operating capacity. Kirk, 991 F.3d at 874. The plaintiff’s engineer concluded based on calculations that a load of steel scale heaped above the sides of the bucket would likely exceed the loader’s rated operating capacity, while a load level with the sides of the bucket would not, and that such a heaped load would, in conjunction with the loader’s short wheelbase, cause a propensity for the loader to tip forward. Id.

However, the expert failed to test his design-defect theory on the loader at issue or on any similar equipment. Kirk, 991 F.3d at 874. He had never used any skid-steer loader with a bucket attachment to pick up and move materials, had never operated a skid-steer loader at full operating capacity, and had never tipped a skid-steer loader forward. Id. Absent testing, the district court concluded that the only identifiable source for the engineer’s opinion that a defect existed was his own speculation. Id. The court excluded the opinion, finding the expert’s bases for and methodologies underlying his design-defect opinion were unreliable. Id.

Equally speculative, the proposed causation opinion met the same fate. See Kirk, 991 F.3d at 876. The expert opined that in the plaintiff’s accident, the weight of the load in the bucket exceeded the rated operating capacity due to the 62-inch bucket size and contributed to the plaintiff’s injuries. Id. at 875­–76. Yet he admitted that he did not know the weight of the load in the bucket at the time of the accident and could not say whether it exceeded the loader’s rated operating capacity. Id. at 876. The expert apparently assumed that the load exceeded rated operating capacity based on a mischaracterization of testimony by the plaintiff, who actually said he did not know how full the bucket was but that it was “possible” the scale material extended above the sides of the bucket, and that he did not know how the load looked but that it “didn’t look unusually large.”  Id. at 870, 876. Testimony by workers that the scale material was irregularly shaped, that no two loads fit the same in the bucket, and that it would take driving the loader over a scale to determine the weight of any particular load undermined reliability of the expert’s calculations of the weight of the load in the bucket when the accident occurred. Id. at 876.

Failure to inspect or test the loader, and failure to rule out alternative causes, added to the district court’s concern about reliability of the expert’s causation opinion. Kirk, 991 F.3d at 876–78. The expert did not view, inspect, or operate the loader in person. Id. at 876. He never visited the factory or inspected the accident site. Id. Absence of testing is a factor that can weigh against a finding of reliability when combined with the lack of supporting data, the Seventh Circuit noted, and while cost-prohibitive or “impossible” testing is not required, the conclusory argument that accident conditions could not be recreated was not substantiated. Id. at 877–78. Nor did the expert account for or investigate alternative causes. Id. at 876–77. He did not interview the plaintiff, the only witness to the accident. Id. at 876. He did not know the plaintiff’s speed or whether the loader had cleared the ramp at the time of the accident. Id. at 876–77. He could not offer specific reasons why the plaintiff’s operation of the loader—which was not involved in any similar occurrences in seven years preceding the plaintiff’s accident—did not contribute to causing the accident. Id.

As to both the design-defect and causation opinions, the Seventh Circuit concluded that the district court correctly applied the admissibility framework under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Kirk, 991 F.3d at 872–74. Therefore, the appellate court reviewed the district court’s reliability determinations for abuse of discretion and, finding none, affirmed. Id. at 873–74, 876.

Exclusion of the proposed expert testimony proved dispositive. Kirk, 991 F.3d at 871, 878–79. The district court entered, and the Seventh Circuit reviewed de novo and affirmed, summary judgment for the manufacturer. Id. Because the loader was a specialized piece of industrial equipment outside of a layperson’s expertise, state law provided that the plaintiff needed expert testimony to prove that the loader’s design rendered it unreasonably dangerous. Id. at 878–79. After exclusion of his only expert, the plaintiff could not establish the existence of a design defect. Id.

The Kirk decision underscores the importance in a design-defect case of product inspection and testing to substantiate proposed design-defect and causation opinions. Failure to inspect or test may be fatal not only to the expert’s proposed testimony, but also to the plaintiff’s claims.

Elaine M. Stoll is an associate with Ulmer & Berne LLP in Cincinnati, Ohio, where she defends products liability litigation and pharmaceutical, medical device, and mass tort claims. She focuses her practice on critical motions and briefs at all stages of litigation and through appeal, and she has extensive experience challenging and defending the admissibility of expert and scientific evidence. She is licensed to practice in Ohio, Kentucky, and Florida and has authored motions filed in state and federal courts in 24 states. Contact her at estoll@ulmer.com.

Pitman was of interest in part because following the district court’s ruling, the defendants appealed, arguing “there is no blanket prohibition on expert testimony regarding the law.”  The Eighth Circuit has yet to rule in that appeal.

However, in August 2021 the Eight Circuit addressed a similar question in a different case, Ascente Bus. Consulting, LLC v. DR myCommerce, 9 F.4th 839, 848 (8th Cir. 2021). Ascente involved disputes related to a contract under which DR myCommerce was to create a website for Ascente. Ascente asserted claims against DR myCommerce for breach of contract, among other things. The district court entered summary judgment in favor of DR myCommerce on the breach of contract claims and Ascente appealed.

One of the issues on appeal concerned the testimony of Ascente’s expert witness. The district court had limited his testimony to e-commerce software development, and to provide that testimony Ascente’s expert apparently had to interpret the parties’ software development agreement. On appeal, Ascente seems to have argued that the district court erred by reading the software development agreement in a manner inconsistent with Ascente’s expert’s reading of the same agreement.

In rejecting that argument, the Eighth Circuit noted that the expert’s testimony “cannot answer the legal question of ambiguity[,]” and the district court’s ruling as to the scope of the expert’s testimony “did not empower [the expert] to declare the Software Development Agreement ambiguous.”  Id. at 848.

The opinion does not describe the nature of the purported disagreement between the district court and Ascente’s expert, or how the existence of those differing opinions might lead to a different ruling on the summary judgment motion below.

However, Ascente does suggest a less than warm reception to the argument now pending before it in Pitman, that “there is no blanket prohibition on expert testimony regarding the law.”

As always, if you should have any thoughts or feedback on this column, please do not hesitate to contact me.

Patrick J. Kenny serves as the Editor-in-Chief of Daubert Online and served for many years as a member of and Expert Witness Chair for the Steering Committee for DRI’s Commercial Litigation Committee. He is a partner with Armstrong Teasdale LLP where he chairs the firm’s Class Action Practice Group, is one of the leaders in the firm’s Insurance Coverage and Litigation Practice Group, and is an active member in the Appellate Practice Group.  He has received numerous recognitions for his insurance and commercial litigation practices including listing by Best Lawyers as the 2016 Insurance Law “Lawyer of the Year” in St. Louis. He also long has been listed as a “Super Lawyer” by Missouri/Kansas Super Lawyers / Super Lawyers Business Edition, he has an AV rating in Commercial Litigation and as an Appellate Lawyer by Martindale-Hubbell and American Lawyer Media (ALM), and he is included in Chambers USA’s listing of America’s Leading Lawyers for Business in its Missouri insurance listing. He previously served as a judicial clerk to the Hon. Pasco Bowman (U.S.C.A., Eighth Circuit). He handles complex litigation and appellate matters including bad faith and insurance coverage disputes, ERISA litigation (both pension and benefits), statutory actions, and matters involving fraud, non-compete agreements, and trade secrets. He has tried jury cases to verdict in Missouri and Illinois, handled and supervised numerous appeals, and served as a neutral in scores of cases. He can be reached at Armstrong Teasdale LLP, 7700 Forsyth Blvd., Ste. 1800, St. Louis, Missouri 63105, (314) 552-6613 (direct), (314) 612-2262 (direct fax), email: pkenny@atllp.com or pkenny@armstrongteasdale.com. For further information see his bio at: https://www.armstrongteasdale.com/patrick-kenny/.

Plaintiff Hardeman alleged that he contracted non-Hodgkin’s Lymphoma (“NHL”) because of his use of Roundup, a glyphosate-based pesticide. The jury returned an $80 million verdict in favor of plaintiff in March 2019—$5 million were for compensatory damages, and $75 million were for punitive damages. Ultimately, the district judge reduced the punitive damages to $20 million, bringing the total award to $25 million.

Monsanto appealed the jury verdict to the Ninth Circuit Court of Appeals, arguing that the district court improperly admitted plaintiff’s expert testimony on the alleged link between glyphosate and NHL. Monsanto argued that the lower court misapplied the Daubert standard, allowing plaintiff to rely on flawed findings with an “analytical gap” between the data and conclusions of the expert witnesses. Monsanto claims that had the court applied the standard correctly, that the case would not have gone to trial because none of the evidence linking glyphosate exposure to cancer would have been admitted.

The district court allowed three of plaintiff’s causation experts to testify (Dr. Portier, Dr. Ritz, and Dr. Weisenburger), acknowledging that significant problems with plaintiff’s experts’ analyses made it a “very close question” whether their testimony should be admissible to support general causation. The district court interpreted the Ninth Circuit’s approach to Daubert as requiring “slightly more room for deference to experts in close cases than might be appropriate in some other Circuits.”  Specifically, plaintiff’s causation experts relied on what is called “differential diagnosis,” which is when a physician “rules in” all potential causes of a disease and “rules out” those for “which there is no plausible evidence of causation, and then determines the most likely cause among those that cannot be excluded.”  The experts considered various risk factors beyond Roundup exposure that could possibly explain his disease (including idiopathic origin—i.e., no known cause) and ruled out all other causations other than Roundup. The district court admitted the experts’ opinions, noting the Ninth Circuit affords experts “wide latitude in how they practice their art when offering causation opinions.” Hardeman, 997 F.3d at 962.

Ultimately, the Ninth Circuit did not find Monsanto’s arguments persuasive. It found that although the lower court made an incorrect assumption that the Ninth Circuit is more permissive than others when admitting Daubert testimony, that it still applied the correct legal standard for reliability when it admitted plaintiff’s causation experts. The court indicated that when there is a close call whether to submit testimony to the jury, “the interests of justice favor leaving difficult issues in the hands of the jury and relying on the safeguards of the adversary system ... to ‘attack[] shaky but admissible evidence.’”  Hardeman, 997 F.3d at 962.

In summary, the court held the district court applied the correct legal standard under Daubert by following precedent and fulfilling its “special obligation to determine the reliability of an expert’s testimony.”  Monsanto filed a petition to the U.S. Supreme Court in August 2021, stating that “The Ninth Circuit’s uniquely lenient admissibility standard…will improperly tilt the balance in the multitude of mass-tort and product-liability cases that—like this case—rise or fall on causation.” 

Dana C. Kopij is a member in the Seattle office of Williams Kastner. She is licensed to practice in Washington and Oregon. Her practice focuses on civil defense litigation, with an emphasis on product liability and mass torts, including asbestos litigation. Ms. Kopij concentrates her practice on developing and implementing defense strategies in state and federal courts for national asbestos products manufacturers, suppliers, and contractors. Additionally, she has handled a number of personal injury and general liability matters on behalf of some of the largest transit authorities in Washington State. She is a member of DRI (Toxic Torts and Environmental Law Committee) and the Washington Defense Trial Lawyers Association. Dana can be reached at dkopij@williamskastner.com or (206) 628-6777.