Stites & Harbison, PLLC

In the fifteen years since Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the criteria used to determine reliability of opinion evidence under FRE 702 have become a familiar litany.

Most commentators find in Justice Blackmun's opinion four, non-exclusive factors for assessing whether the methodology underlying proffered opinion testimony provides the necessary assurance of reliability.  E.g., Standards and Procedures for Determining the Admissibility of Expert Evidence After Daubert, ACTL (1994).  In shorthand form, trial lawyers refer to the four factors as:  (1) testability, (2) peer review, (3) potential error rate, and (4) general acceptance.

Any trial lawyer re-reading Daubert, however, or reading afresh the Ninth Circuit's application of the Daubert standard on remand from the U. S. Supreme Court, see 43 F.3d 1311 (9th Cir. 1995), may be surprised to learn that a fifth reliability element—often overlooked—is frequently applicable and very useful.

As the Ninth Circuit described it, the fifth factor for testing the reliability of expert testimony "is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying."  Id. at 1317.

In the years that Daubert's progeny have multiplied, spurred by judicial willingness to apply reliability criteria to a widening array of opinion testimony, fewer and fewer witnesses are positioned to portray their opinions as "growing naturally and directly" out of independent research.  On the contrary, the vast majority of expert witnesses in product liability litigation are not testifying based on independent research or investigation.

For plaintiffs at least, the typical product liability expert witness retained to testify on product defect is an engineer, a materials scientist, or an ergonomics specialist whose opinions are grounded almost exclusively in documents and materials provided by counsel.  Occasionally, but not often, the liability witness's opinions are lightly seasoned with a dash of non-litigation work experience and/or internet research.

Faced with witnesses meeting this description, even the most imaginative trial lawyer struggles to apply the usual four Daubert criteria.  When arguing for exclusion, however, the fifth element—the "prepared-solely-for-litigation" element—can be decisive.

Recently, in Johnson v. Manitowoc Boom Trucks, 2007 U.S. App. LEXIS 9895 (April 30, 2007), the Sixth Circuit reviewed and heartily approved the "prepared-solely-for-litigation" factor in affirming the exclusion of plaintiff's otherwise well-credentialed and experienced engineer.  An engineering consultant for 25 years, the proffered witness testified in countless cases before Johnson, opining on such diverse products as a deep fat fryer, a forklift, a trampoline, a manure spreader, a log skidder, a concrete saw, and a wheelchair.  But the witness had no experience in the design or manufacture of a boom truck crane—the product at issue.

The trial court acknowledged the engineer's general experience and qualifications, and used three of the customary Daubert criteria to evaluate his proposed testimony, but the determining factor was the engineer's status as a quintessential expert for hire.  The trial court said:  "Consideration of the context of an expert's opinion is especially important given the potential for abuse in light of the incredible benefits of hindsight.  Here, the expert's opinions were conceived, executed, and invented solely in the contest of this litigation."  Johnson, 406 F. Supp. 2d 852,  865-66 (M.D. Tenn., 2005).

On appeal, the Sixth Circuit court held that the trial court has the discretion to conduct a Daubert analysis with greater or lesser rigor based on whether the proposed opinion testimony was formulated solely for the purposes of litigation.  Id. *28.  When an expert's opinions arise out of the normal course of pursing professional research, field work, or other non-litigation activity, this provides independent, objective evidence of reliability.

Notably, the Sixth Circuit said that neither Daubert nor Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), mention the fifth element employed by this particular trial court.  Johnson *12.  Instead, the Sixth Circuit credited the Ninth Circuit with "[p]erhaps the best explication of the prepared-solely-for-litigation factor . . . when it revisited the Daubert case after the Supreme Court sent it back on remand."  Id. *25.

Arguably, Daubert does plant the seed germinated by the Ninth Circuit—at least the Ninth Circuit thought so—by retaining the "general acceptance" element from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  The converse of a generally accepted methodology is a methodology that is not widely known or employed, i.e., a methodology developed solely for the purpose of particular litigation.

Whatever the lineage, employing a fifth factor struck the Sixth Circuit as "quite lucid and quite correct."  Johnson *27.   Moreover, observed the court, the Ninth Circuit "continues to apply this formula today.  See, e.g., Clausen v. M/V New Carissa, 339 F. 3d 1049, 1056 (9th Cir. 2003); Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 841 (9th Cir. 2001)."

The Sixth and Ninth Circuits are not alone, and more trial courts in more circuits are likely to agree.  For example, in Lauzon v. Senco Products, Inc., 270 F.3d 681, 687 (8th Cir. 2001), the Eight Circuit comfortably concluded that "Daubert's progeny" provide ample support for "additional factors such as: whether the expertise was developed for litigation or naturally flowed from the expert's research."  See also, Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir. 1996) (experts in court must adhere to the same standards of intellectual rigor that are demanded in their professional work); Watkins v. Telsmith, Inc., 121 F.3d 984 (5th Cir. 1997) (proper to evaluate whether the expert is a "hired gun").

In short, courts have broad discretion to determine which "non-exclusive" factors to consider in the reliability analysis of proposed expert testimony.  It's the trial lawyer's job to bring to the court's attention all of the factors bearing on scientific validity and reliability.  If an expert's opinion was generated solely for the purpose of a particular piece of litigation, it warrants a hard look.
__________
John L. Tate, Member, Torts & Insurance Practice Service Group, Louisville office
Lucy L. Heskins, Associate, Torts & Insurance Practice Service Group, Louisville office