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“DELIVER US FROM EVIL ERROR”:

RECENT VICTORIES AND SUCCESSFUL

STRATEGIES FOR NEW LIFE IN THE DAUBERT

WORLD IADC Mid-Year Meeting February 14-18, 2015

AUTHORED BY:

Holly Kipp Norton Rose Fulbright US LLP

98 San Jacinto Boulevard, Suite 1100

Austin, Texas 78701

(512) 536-5267 [email protected]

with

Oliver Thoma

[email protected]

PRESENTED BY:

Lana Varney

Norton Rose Fulbright US LLP

98 San Jacinto Boulevard, Suite 1100

Austin, Texas 78701

(512) 536-4594

[email protected]

Christopher Liwski

Sanofi US

55 Corporate Drive 55A-525A

Bridgewater, New Jersey 08807


mailto:[email protected]




Daubert Challenges: New Age

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Mark Cheffo Quinn Emanuel Urquhart & Sullivan, LLP

51 Madison Avenue, 22nd Floor,

New York, New York 10010




2

AUTHORS’ NOTE

The authors have provided the reader with comments concerning differing standards for expert

witness admissibility. The reader is advised that others may reach different conclusions and

recommendations due to their differing views of these issues. The authors do not warrant that their

conclusions and recommendations will be adhered to by any or all courts that rule on these matters.

The reader should therefore conduct independent legal research before undertaking any activity

that may be within the scope of any matter referenced in this paper.


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INTRODUCTION

Many states model their rules of evidence for the admissibility of expert testimony after the Federal Rules of Evidence. Accordingly, these states generally look to federal case law to determine the standards applicable for evaluating the qualifications and reliability of experts—the two touchstones of expert admissibility. The starting place for most states is the Supreme Court of the United States’ seminal opinion in Daubert v. Merrell Dow Pharm., Inc.,1 where it interpreted Federal Rule of Evidence 702 and how to evaluate an expert’s reliability. Unfortunately, however, there is no consensus on the application of Daubert in the 50 states. Each state has rejected, adopted, or modified Daubert and its progeny. Indeed, application of Daubert and its progeny2 has been in flux in the states since the Daubert opinion was handed down in 1993.

This paper will discuss the impact and application of the Daubert decision to determine the

reliability of expert opinions in state courts across the country. We will also explore emerging trends in the application of the Daubert factors, and will provide guidance to practitioners regarding the admissibility of expert witness testimony under the Daubert line of cases.

A. Daubert openly rejected the Frye standard for expert reliability:

The Daubert decision revolutionized expert-reliability standards because it liberalized the prevailing standard in federal and state courts articulated in Frye v. United States 70 years earlier.3 Frye is a 1923 opinion by the D.C. Circuit Court of Appeals, which addressed the reliability of a lie-detector test.4 Specifically, the court held that the lie-detector test was unreliable because it had not yet gained enough acceptance in the relevant scientific community as a reliable methodology.5 This “general acceptance” standard was applied by courts pre-Daubert to determine whether an expert’s methodology was reliable, especially in the realm of new scientific methodologies.

Following the codification of Federal Rule of Evidence 702, the Supreme Court in Daubert liberalized the Frye expert-reliability analysis by creating a list of non-exclusive, non-mandatory factors to consider when determining the “reliability” of the underlying reasoning and/or methodology informing the expert’s opinion.6 Those factors include: (1) whether an expert’s reasoning/methodology can be, and has been tested; (2) whether an expert’s reasoning/methodology has been subjected to peer review and publication; (3) the known or potential rate of error for the expert’s reasoning/methodology; (4) existence and maintenance of standards controlling the operation of the expert’s reasoning/methodology; and (5) whether such reasoning/methodology is generally accepted in the relevant scientific community.7 Thus, the Supreme Court found that Rule 702 superseded Frye because the Federal Rules of Evidence

1Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993); see also FED. R. EVID. 702. 2See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997). 3Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Please note, however, that in some contexts, the Daubert standard may be more strict than Frye (i.e., where a methodology is generally accepted, but under scrutiny proves unreliable. 4Id. at 1013–14. 5Id. at 1014 (“We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.”) 6 Daubert, 509 U.S. at 588 (“Nothing in the text of this Rule establishes ‘general acceptance’ as an absolute prerequisite to admissibility.”). 7 Id. at 592-94.


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were intended to have a liberal thrust toward admissibility and purposefully left out the austere general acceptance standard.8

Since Daubert, the 50 states have differed in their willingness to embrace Daubert:

While the states are not aligned in their approach to expert admissibility, the states tend to fall into two general camps: (1) reject Daubert and its progeny—generally in favor of the Frye9 standard; or (2) adopt Daubert and its progeny outright, or at least find the opinions instructive. Additionally, some state courts employ either a stricter or more liberal standard than Daubert. For instance, those states that apply Frye are applying a stricter standard because Daubert was intended to liberalize the Frye standard.10 However, states may limit the application of either standard to certain topics (e.g., scientific evidence or new scientific methodology).

Most importantly, one must dive deep into the nuances of each states’ expert admissibility laws in order to get a firm grasp on the boundaries of each states’ expert jurisprudence. For example, some states are explicit in stating that Daubert only applies to scientific testimony. Other states are mute on the subject and implicitly follow the Supreme Court’s holding in Kumho.11 Some states purport to reject Daubert, but nonetheless apply some of its factors. Even still, some states that had long opposed Daubert have since accepted it (e.g., Arizona and Florida). Thus, constantly monitoring state expert law is imperative to understand the dynamic landscape.

On a final note, appellate courts generally employ an abuse of discretion review to review trial court evidentiary rulings. 12 The flexibility of this standard means that rulings on the admissibility of expert testimony will be reviewed deferentially.

These jurisdictions reject Daubert and progeny:

Alabama (all Frye except for DNA); California (Kelly/Frye test); Illinois (Frye for new scientific methodology); Kansas (Frye for all scientific evidence, plus statute); Maryland** (Reed/Frye test applies to new scientific methodology, but open to case-by-case application of Daubert); Minnesota (Frye-Mack test); Missouri (Frye for criminal law, but liberal admissibility standard by statute for civil and administrative cases); New Jersey (Frye for criminal cases, but unclear for civil cases, even though Frye is sufficient in civil cases); New Mexico (only reject Daubert in workers compensation cases); New York** (generally applies Frye, but highest court has never ruled and some lower courts have applied Daubert); North Carolina (applies Goode test, which is more liberal than Daubert); Pennsylvania (Frye); South Carolina; Utah (applies more relaxed standard but reliable if evidence satisfies Frye); Washington** (generally Frye, but a concurrence suggested Daubert should apply in civil cases and Frye in criminal cases); and West Virginia (only for non-scientific testimony).

8Id. (“The drafting history makes no mention of Frye, and a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to “opinion” testimony.’”). 9Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (requires a general acceptance of the scientific methodology before an expert may testify to it). 10Daubert, 509 U.S. at 587–88. 11Kumho, 526 U.S. at 150–53 (holding that the general principles in Daubert apply to all expert testimony, but that more experience-based fields (e.g., mechanical engineers) should be subject to a more flexible reliability analysis since their observations may not be easily testable like scientific evidence (e.g., causation study of pharmaceutical side effects)). 12See, e.g., Joiner, 522 U.S. at 141–42 (applying abuse of discretion standard to review a trial court’s evidentiary rulings).


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These jurisdictions adopt Daubert and progeny or at least find them instructive:

Alabama (only for DNA); Alaska (only for scientific evidence); Arizona; Arkansas; Colorado; Connecticut; Delaware; Florida; Georgia; Hawaii; Idaho; Indiana; Iowa; Kentucky; Louisiana; Maine; Massachusetts; Michigan; Mississippi; Montana; Nebraska; Nevada (scientific evidence); New Hampshire; New Mexico (except in workers’ compensation context); Ohio; Oklahoma; Oregon; Rhode Island; South Dakota; Tennessee; Texas; Vermont; Virginia; West Virginia (only scientific evidence); Wisconsin; and Wyoming.

Stricter or more liberal than Daubert:

Below is a brief summary of key states with stricter or more liberal expert admissibility standards than Daubert. This summary is certainly subject to differing views given the dynamic nature of expert law at the state court level, but is paints a general overview of the law as it exists today.

California: applies Kelly/Frye to all new scientific methodology, thus embracing a stricter standard than Daubert for new scientific methodology. However, it is generally considered more liberal in the area of medical expert testimony, which is not subject to the Kelly/Frye analysis.

Illinois: applies the stricter Frye test to all new scientific methodology.

Maryland: applies stricter Frye test to all new scientific methodology, but it is open to case-by-case application of Daubert.

Massachusetts: relevant scientific community remains the most important factor, which does not achieve the full liberalization envisioned in Daubert.

Minnesota: applies stricter Frye test.

Montana: Daubert only applies to new scientific methodology. Otherwise, there is a preference for liberal admissibility.

North Carolina: applies its own Goode test that is more liberal than Daubert.

Oregon: applies Daubert factors but has additional factors that it requires its courts to employ; thus making it potentially stricter than Daubert.

Pennsylvania: maintains the stricter Frye test.

Texas: applies an arguably stricter Robinson test for scientific evidence because of the additional

factors it employs. However, Texas applies the analytical gap test for non-scientific evidence.

Utah: applies more relaxed standard but expert testimony is admissible if it satisfies Frye.

Washington: Frye applies in criminal cases and generally in civil cases, but a concurrence suggested Daubert should apply in civil cases.


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STATE13 CASE EXPERT ADMISSIBILITY STANDARD (RELIABILITY)

Alabama Bagley v. Mazda Motor Corp., 864 So.2d 301 (Ala. 2003)

Daubert for DNA admissibility; Frye for all other scientific evidence.

Alaska Thompson v. Cooper, 290 P.3d 393 (Alaska 2012)

Daubert only for scientific evidence.

Arizona State v. Burke ex rel. Cnty. of La Paz, No. 1 CA-SA 12-0028, 2012 WL 1470103 (Ariz. Ct. App. Apr. 26, 2012)

Ariz. R. Evid. 702 was recently amended to fully adopt the federal rule and thus Daubert. This was a major change from Arizona’s previous standard.

Arkansas Green v. George's Farms, Inc., 378 S.W.3d 715 (Ark. 2011)

Applies Daubert.

California People v. Lucas, 333 P.3d 587, 662 n.36 (Cal. 2014);

Roberti v. Andy's Termite & Pest Control, Inc., 6 Cal. Rptr. 3d 827 (2003);

People v. Kelly, 549 P.2d

1240 (Cal. 1976)

The Kelly/Frye test applies to all expert testimony regarding new scientific methodology. However, medical expert testimony is not subject to Kelly/Frye.

Colorado People v. Shreck, 22 P.3d 68

(Colo. 2001)

Daubert is instructive but not

mandatory.

Connecticut Sullivan v. Metro-N. Commuter R. Co., 971 A.2d 676 (Conn. 2009)

Applies Daubert and

progeny.

Delaware M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513 (Del. 1999)

Applies Daubert and progeny.

13For further information, see American Bar Association, 50 State Survey of Daubert/Frye Applicability, (Dec. 16, 2014), available at http://apps.americanbar.org/litigation/committees/trialevidence/daubert-frye-survey.html (this resource is in the process of being updated and should be completely updated by the end of 2015).


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Florida H.B. 7015, 2013 Leg., Reg. Sess. (Fla. 2013) (amending FLA. STATS. § 90.702)

New legislative amendment effective in July 2013 adopted Daubert and progeny.

Georgia HNTB Georgia, Inc. v. Hamilton-King, 697 S.E.2d 770 (2010)


Hawaii State v. DeLeon, 319 P.3d 382 (2014)

Daubert and progeny are instructive.

Idaho Weeks v. E. Idaho Health Servs., 153 P.3d 1180, 1184

(2007)

Daubert is instructive but has not been expressly adopted.

Illinois People v. McKown, 875

N.E.2d 1029, 1036 (2007)

The Frye test applies to all

expert testimony regarding new scientific methodology.

Indiana Turner v. State, 953 N.E.2d 1039 (Ind. 2011)

Daubert is instructive but not mandatory.

Iowa Mercer v. Pittway Corp., 616 N.W.2d 602, 628 (Iowa 2000)

Daubert is instructive but not mandatory.

Kansas Kuhn v. Sandoz Pharmaceuticals Corp., 14 P.3d 1170 (Kan. 2000)

Frye applies to all scientific testimony and acts as a qualification to KAN. STAT. ANN. §60-456(b).

Kentucky Curd v. Kentucky State Bd. of Licensure for Prof'l Eng’rs & Land Surveyors, 433 S.W.3d 291 (Ky. 2014)

Applies Daubert.

Louisiana State v. Young, 35 So. 3d 1042 (La. 2010)


Maine State v. Erickson, 13 A.3d 777 (Me. 2011);

Searles v. Fleetwood Homes of Penn., Inc., 878 A.2d 509

(Me. 2005)

Declined to adopt Daubert but adopted flexible reliability standard that borrows some of Daubert’s factors.


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Maryland Reed v. State, 391 A.2d 364

(Md. 1978);

Smith v. State, 880 A.2d 288 (Md. 2005)

The Reed/Frye test applies to

new scientific methodology, but Maryland has allowed for case-by-case development of Daubert rather than reject it.

Massachusetts Palandjian v. Foster, 842 N.E.2d 916 (Mass. 2006);

Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994)

Applies Daubert but general acceptance in the relevant scientific community remains the most important factor in determining reliability and may be sufficient evidence of reliability .

Michigan Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391 (Mich. 2004)

Applies Daubert.

Minnesota Goeb v. Tharaldson, 615 N.W.2d 800 (Minn. 2000);

State v. Mack, 292 N.W.2d 764 (Minn. 1980)

Applies Frye-Mack test.

Mississippi Hill v. Mills, 26 So. 3d 322 (Miss. 2010)


Missouri State Bd. of Registration for Healing Arts v. McDonagh,

123 S.W.3d 146 (Mo. 2003);

State v. Daniels, 179 S.W.3d 273 (Mo. Ct. App. 2005) (explaining Missouri uses Frye standard for criminal cases)

MO. ANN. STAT. § 490.065 for civil and administrative cases (the statute differs from FED. R. OF EVID. 703 in that the statute requires that expert testimony must be “relied upon by experts in the field”); Frye for criminal cases.

Montana State v. Damon, 119 P.3d 1194 (Mont. 2005)

Daubert only applies to new scientific methodology. Otherwise, there is a preference for liberal admissibility.

Nebraska Carlson v. Okerstrom, 267 Neb. 397, 410, 675 N.W.2d 89, 103 (2004)



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Nevada Hallmark v. Eldridge, 189

P.3d 646 (Nev. 2008)

Daubert and progeny not

adopted but may be instructive for scientific evidence.

New Hampshire Baxter v. Temple, 949 A.2d 167 (N.H. 2008)


New Jersey Conrad v. Michelle & John, Inc., 925 A.2d 54 (N.J. Super. Ct. App. Div. 2007)

State v. Harvey, 699 A.2d 596 (N.J. 1997)

Frye for criminal cases. For civil cases, the standard is unclear because it cites to both Frye and Daubert.

New Mexico Banks v. IMC Kalium Carlsbad Potash Co., 77 P.3d 1014 (N.M. 2003);

State v. Alberico, 861 P.2d

192 (N.M. 1993)

Applies Daubert/Alberico test, except in workers’ compensation context.

New York Zito v. Zabarsky, 812

N.Y.S.2d 535 (N.Y. App. Div. 2006);

Wahl v. Am. Honda Motor Co., 693 N.Y.S.2d 875 (N.Y.

Sup. Ct. 1999)

Frye is generally applied:

New York’s highest court has never expressly adopted Daubert. However, some trial courts have adopted Daubert,

or at least found it instructive.

North Carolina Howerton v. Arai Helmet, Ltd., 597 S.E.2d 674 (N.C. 2004);

State v. Goode, 461 S.E.2d 631 (N.C. 1995)

Rejected Daubert in favor of the Goode test, which is much more flexible than Daubert.

North Dakota State v. Hernandez, 707 N.W.2d 449 (N.D. 2005)

Declined to adopt Daubert in favor of N.D. R. Evid 702’s allegedly more liberal standard for admissibility.

Ohio Terry v. Caputo, 875 N.E.2d 72 (Ohio 2007);

Miller v. Bike Athletic Co., 687 N.E.2d 735 (Ohio 1998)



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Oklahoma Covel v. Rodriguez, 272 P.3d

705 (Okla. 2012);

Christian v. Gray, 65 P.3d 591 (Okla. 2003)

Applies Daubert and

progeny.

Oregon Jennings v. Baxter Healthcare Corp., 14 P.3d 596 (Or. 2000);

State v. O’Key, 899 P.2d 663 (Or. 1995)

Finds Daubert persuasive and has added a list of additional factors to evaluate reliability.

Pennsylvania Com. v. Walker, 92 A.3d 766 (Pa. 2014);

Grady v. Frito-Lay, Inc., 839 A.2d 1038 (Pa. 2003)

Applies Frye.

Rhode Island Morabit v. Hoag, 80 A.3d 1, 12 (R.I. 2013);

Raimbeault v. Takeuchi Mfg. (U.S.), Ltd., 772 A.2d 1056 (R.I. 2001)

Daubert and its progeny have not been expressly adopted but have been endorsed and applied.

South Carolina State v. Jones, 681 S.E.2d 580, 586 (S.C. 2009);

State v. Council, 515 S.E.2d

508 (S.C. 1999)

Declined to adopt Daubert and its progeny.

South Dakota Burley v. Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397. (S.D. 2007)

Applies Daubert and

progeny.

Tennessee Brown v. Crown Equip. Corp., 181 S.W.3d 268 (Tenn. 2005);

McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997)

Failed to expressly adopt Daubert and progeny, but found them useful.


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Texas Transcon. Ins. Co. v. Crump,

330 S.W.3d 211 (Tex. 2010);

E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995)

Applies Daubert and progeny

to scientific evidence; applies the analytical-gap test to non-scientific evidence. Robinson embraces more factors than Daubert (i.e., extent to which the technique at issue relies on the expert’s subjective interpretation and whether the technique is used outside the litigation context); thus, giving it the potential to be considered stricter than Daubert.

Utah Johnson v. Montoya, 308

P.3d 566 (Utah Ct. App. 2013);

Alder v. Bayer Corp., AGFA Div., 61 P.3d 1068 (Utah

2002)

Applies its own relaxed admissibility standards UTAH R. Evid. 702 (amended 2011): can satisfy threshold admissibility requirement under Frye regardless of novelty of methodology. If fail to satisfy Frye, can meet threshold by showing basic indicia of reliability.

Vermont Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 46 A.3d 891, 897 (Vt. 2012);

State v. Brooks, 643 A.2d 226 (Vt. 1993)

Applies Daubert and

progeny.

Virginia John v. Im, 559 S.E.2d 694 (Va. 2002);

Hasson v. Com., No. 0403-05-4, 2006 WL 1387974 (Va. Ct. App. May 23, 2006)

Never expressly adopted Daubert and progeny but

finds them instructive on scientific evidence.

Washington Anderson v. Akzo Nobel Coatings, Inc., 260 P.3d 857 (Wash. 2011)

Frye applies in criminal cases and generally in civil cases, but a concurrence suggested Daubert should apply in civil cases because of the lesser burden of proof.


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West Virginia Watson v. Inco Alloys Int'l, Inc., 545 S.E.2d 294 (W. Va. 2001)

Applies Daubert to scientific

evidence but expressly declined to apply it to non-scientific evidence.

Wisconsin State v. Giese, 854 N.W.2d 687 (Wis. Ct. App. 2014)

Applies Daubert and progeny after codified in 2011 amendments to Wis. Stat. § 907.02.

Wyoming Alexander v. Meduna, 47

P.3d 206 (Wyo. 2002)

Applies Daubert and progeny

but does not ignore pre-Daubert case law on what expert testimony is admissible.

EMERGING TRENDS IN DAUBERT LAW:14

Increased use of economic experts leads to increase of Daubert challenges:

In general, the increased use of economic experts in litigation has led to a steady surge of Daubert challenges. For example, accountants and economists are the most frequently challenged financial experts.15 However, case type affects the frequency and outcome of Daubert challenges,

and fraud and intellectual property experts are excluded at higher rates than other financial expert witnesses.16 Also, challenges based on an expert’s reliability are significantly more likely to be successful than challenges based on expert’s qualifications.17

Notably, the Federal Circuit recently relaxed its previously strict standards for damages in intellectual property cases.18 Specifically, the Federal Circuit recently reversed Judge Richard Posner’s exclusion of nearly all expert evidence on damages while observing the following: “A judge must be cautious not to overstep its gatekeeping role and weigh facts, evaluate the correctness of conclusions, impose its own preferred methodology, or judge credibility, including the credibility of one expert over another. These tasks are solely reserved for the fact finder.”19

14See Kenneth I. Schacter and Mary Gail Gearns, Expert Q & A: Trends in Daubert Challenges, Practical Law (Dec. 12, 2014), available at http://us.practicallaw.com/0-588-1186; see also PricewaterhouseCoopers, Daubert Challenges to Financial Experts: A Yearly Study of Trends and Outcomes (Dec. 12, 2014), available at http://www.pwc.com/en_US/us/forensic-services/publications/assets/daubert-study-2013.pdf (studying federal and state court published opinions). 15Daubert Challenges to Financial Experts, at 9. 16See id. at 10. 17See id. at 11. 18See Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1313-14 (Fed. Cir. 2014). 19Id.; see also Justin Skinner and Deforest McDuff, Apple v. Motorola May Help Defenders of Daubert Challenges, Law 360 (Dec. 14, 2014), available at http://www.law360.com/articles/539384/apple-v-motorola-may-help-defenders-of-daubert-challenges.


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Potential increase in Daubert challenges at the class certification stage:

Thanks to the Supreme Court’s recent affirmations of the propriety of Daubert challenges at the class certification stage rather than at the merits stage, Daubert challenges at the class

certification stage are expected to increase20. This trend will be particularly relevant in products liability suits.21 Although state class certification law may vary with federal law, many major class action matters are preempted by federal law.

Trends in in state-court jurisdictions raising the threshold for admissibility:

Even in traditionally challenging jurisdictions for defendants, a quiet trend may be emerging to apply more rigorous expert-reliability analyses. For example, in the United States Court of Appeals for the Ninth Circuit, the Court, sitting en banc to review a decision in an asbestos case, held that an appellate court on review has the ability to make a Daubert determination based on the trial court’s record.22 Although the Ninth Circuit declined to make a Daubert determination because of the state of the trial court record, the Ninth Circuit vacated a $9.4 million judgment for plaintiffs in the asbestos case because the trial court had failed to make a Daubert determination. Accordingly, products-liability plaintiffs must be prepared to present more concrete, scientific expert testimony that will satisfy the trial court and the Ninth Circuit on appeal.

Similarly, the Pennsylvania Supreme Court, applying Frye, rejected the “every fiber” (also known as “any exposure”) theory that every single exposure to asbestos is a substantial contributing factor to any asbestos-related disease.23 The Pennsylvania Supreme Court upheld the Court of Common Pleas’ exclusion of the expert’s opinion because it was unreliable to suggest exposure to every single fiber is causative when the disease is dose responsive. This case serves as a reminder that Frye, if applied correctly, can aid products-liability defendants in dispelling imaginative leaps made by plaintiffs’ causation theories.

Texas, which was once a challenging state for defendants, has since adopted a very rigorous expert-reliability analysis24, and it too has rejected the “every fiber” or “any exposure” theory as being sufficient evidence of causation in asbestos cases.25 Moreover, the conservative nature of the Texas Supreme Court virtually guarantees a rigorous expert-reliability analysis that is likely to be prejudiced against plaintiffs both in terms of procedure and substance.26

20 See Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398, 2413–17 (2014); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553–54 (2011). 21See, e.g., Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010) (involving motorcycle buyers’ suit against manufacturer for problems with steering assembly). 22Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 467 (9th Cir. 2014) cert. denied, 135 S. Ct. 55 (2014). 23Betz v. Pneumo Abex, LLC, 44 A.3d 27, 551–54 (Pa. 2012). 24 Although Texas case law on admissibility of expert testimony had been somewhat permissive in the past, Texas is notably rigorous in its substantive standards for epidemiological evidence of causation in products liability cases, requiring at least two studies showing a statistically significant association between the exposure and injury and relative risk exceeding two (2). See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). 25Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332, 338–42 (Tex. 2014); see also E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). 26See, e.g., City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (holding that defendant did not waive its objection to an expert’s opinion in benzene-exposure case because of the analytical gap between expert’s conclusion and the factual basis). Notably, the Texas Supreme Court determined that


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Given the dynamic nature of state expert law, only time will tell whether this quiet trend will expand toward a more universal application of Daubert and its progeny.

Trends in pelvic mesh litigation:

In a string of recent pelvic mesh multidistrict litigation (“MDL”) opinions, Judge Joseph Goodwin, of the United States District Court for the Southern District of West Virginia, has authored some notable pre-trial Daubert rulings, including rulings to exclude plaintiffs’ experts.27 For instance, Judge Goodwin excluded some of plaintiffs’ experts on general causation opinions that were based on pathologic reports, which were selected by plaintiffs’ counsel without a scientific basis for the selection.28 Additionally, Judge Goodwin made general observations indicating a rigorous (and defendant-friendly) application of Daubert to pelvic mesh causation experts. For example, Judge Goodwin found that an expert acts unreliably if it selectively adopts pieces of pathological studies.29 Additionally, Judge Goodwin found that failure to follow well-established testing protocols will render an expert’s testing unreliable.30 Likewise, specific causation requires that the expert rule out alternative causes; failure to do so demands exclusion under Daubert unless the expert can (1) offer reasonable opinions as to why and (2) exclude alternative causes as the most likely cause.31 These Daubert rulings may have a long-term effect on the outcome of the various pelvic mesh MDL proceedings.

CONCLUSION:

State law varies dramatically in its application of the Daubert-expert-reliability analysis. But a quiet

trend appears to be emerging in several state-court jurisdictions that favors a more rigorous reliability analysis for experts. However, it is important for the practitioner to constantly monitor and update its understanding of expert law because the landscape is so dynamic.

the defendant did not have to raise its objection at trial because the analytical gaps in the plaintiff’s expert’s opinion were conclusory and thus legally insufficient evidence. 27See, e.g., Eghnayem v. Boston Scientific Corp., No. 2:13-CV-07965, 2014 WL 5461991 (S.D. W. Va. Oct. 27, 2014); Sanchez v. Boston Scientific Corp., No. 2:12-CV-05762, 2014 WL 4851989 (S.D. W. Va. Sept. 29, 2014). 28See, e.g., Eghnayem, 2014 WL 5461991, at *9. 29Sanchez, 2014 WL 4851989, at *19–24. 30See id. at *7. 31See id. at *38.

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