Maggie Tamburro – October 16, 2012<\/p>\n
Think you have that winning expert witness in your back pocket?\u00a0 Think again.\u00a0 The 6th\u00a0<\/sup>Circuit has recently released an opinion that reminds experts and attorneys to use extreme caution:\u00a0 That ace-in-the-hole, hired-gun expert witness might just backfire if you\u2019re not careful.<\/p>\n You likely won\u2019t find this case reported on by Reuters or\u00a0The<\/em>\u00a0Wall Street Journal<\/em>\u00a0(at least as of\u00a0this<\/em>\u00a0writing).\u00a0 However, it certainly didn\u2019t escape our attention as a must-read U.S. Circuit Court opinion addressing the niche and nuance filled world of experts, reliability, and admissibility.\u00a0 The opinion also serves up equally important ammunition for attorneys defending corporations, providing ample fodder for those seeking to challenge hired-gun expert testimony in certain disciplines.<\/p>\n When the Ordinary Becomes Extraordinary<\/strong><\/p>\n The case facts were somewhat ordinary, but sometimes, (as spoken by a famous American football coach from Texas), the difference between the ordinary and the extraordinary is \u201cthat little extra.\u201d<\/p>\n The case concerned allegations of defective design involving a leading global manufacturer of industrial equipment as a defendant.\u00a0 While under the employ of Lowe\u2019s (also named as a defendant earlier in the action), the plaintiff unwittingly suffered a crushed foot while operating a piece of heavy equipment.<\/p>\n As is generally the case in proving such cases, plaintiff required an expert witness.\u00a0 Plaintiff hired what at first blush seemed like a winning choice \u2013 a mechanical engineer with extensive prior litigation experience in both consulting and testing involving equipment similar to that in this case. With the help of her expert witness, plaintiff came out of the gate with guns drawn, suing for compensatory and punitive damages.<\/p>\n The defendant, however, returned fire, attacking the reliability and admissibility of the expert\u2019s testimony with a motion in limine (and a motion for summary judgment).<\/p>\n Dubbing him a \u201cquintessential expert for hire,\u201d the district court concluded that nearly all of the expert\u2019s knowledge and experience had resulted from his work as a legal consultant in other cases.\u00a0 Moreover, the court concluded that the expert\u2019s testing failed to address alternative design issues specific to the product and manufacturer at issue in the present case.<\/p>\n Excluding the expert\u2019s testimony as unreliable, the district court granted defendant\u2019s motion for summary judgment, and the case landed on appeal in the 6th<\/sup>\u00a0Circuit, offering up some important take-aways for experts and attorneys alike.<\/p>\n What\u00a0Didn\u2019t\u00a0<\/em>Get Plaintiff Out of the \u2018Starting Gate\u2019<\/strong><\/p>\n In its appellate opinion, the 6th<\/sup>\u00a0Circuit reiterated three valuable lessons, all of which are critical for attorneys defending corporations in such actions to know.<\/p>\n If an expert is a \u201cquintessential expert for hire,\u201d (meaning he or she has performed very little non-litigation-related research), the\u00a0 6th<\/sup>\u00a0Circuit upheld the notion that a trial court has discretion to apply the\u00a0Daubert\u00a0<\/em>factors more rigorously, requiring the expert to show some kind of objective proof of reliability.<\/strong><\/p>\n Moral of story:\u00a0 A district court can (and those in the 6th<\/sup>\u00a0and 9th<\/sup>\u00a0Circuits will) analyze more rigorously the admissibility of certain expert testimony that is prepared solely for litigation.<\/p>\n Some circuits have layered the \u201cprepared-solely-for-litigation\u201d test over the factors enumerated in\u00a0Daubert<\/em>.\u00a0 However, the 6th<\/sup>\u00a0Circuit\u2019s decision serves as a current reminder that this \u201cprepared-soley-for litigation\u201d test remains alive and well.<\/p>\n Here the district court found no evidence the expert\u2019s opinion had grown naturally out of independent research.\u00a0 Instead, the expert\u2019s knowledge and experience regarding the case at issue was nearly\u00a0all<\/em>\u00a0the result of consulting work in other cases.<\/p>\n In fact, when he formed the opinion proffered in the present case, the expert was working for an engineering firm that was performing consulting work on earlier litigation, and his testimony showed that he had conducted very little non-litigation-related research.\u00a0 Because the district court concluded that the expert\u2019s opinion was actually the result of work on other cases, it scrutinized that opinion more closely.<\/p>\n The plaintiff argued that the lower court should have focused on the expert\u2019s methodology, not the conclusions generated.\u00a0 \u00a0Plaintiff argued that methodology utilized by the expert was generally accepted, which therefore should have justified the expert\u2019s conclusions, but the court rejected that argument.\u00a0 Although it is conceded conclusions and methodology are not separate issues, the circuit court here sided with defendant, sending the message that the means can\u2019t be used to justify the end.<\/p>\n The moral of that story:\u00a0 Adherence to use of generally accepted methodology doesn\u2019t act to bolster or otherwise justify expert theories or conclusions that are otherwise largely rejected by the relevant scientific community.<\/p>\n An Expert Backfire<\/strong><\/p>\n What looked like the perfect expert backfired.\u00a0\u00a0Why?<\/em><\/p>\n Determinations of reliability are multifactorial, often case specific and can be highly discipline dependent. Adding another layer to an already messy equation, district courts are granted wide latitude in determining which reliability factors should be used in a particular case, as well as how to apply and analyze those factors. Many variables come into play, including the nature of the case, the particular facts and circumstances, and the type and discipline of expertise involved.\u00a0\u00a0 Knowing what is required in the evidentiary and procedural rules, the substantive area of the law, the case precedent in your jurisdiction, and the relevant field of expertise at issue is critical.\u00a0 Finally, understand how those requirements are uniquely affected by the specific circumstances of your case.<\/p>\n For example, in a design defect case, an engineering expert almost always must test a proposed hypothesis, often one including an alternative design \u2013 which the court found lacking here.\u00a0 However, as noted in the 6th\u00a0<\/sup>Circuit\u2019s opinion, the alternative design testing here should have addressed both product-specific and manufacturer-specific issues, as well as the design\u2019s comparative risks and benefits.<\/p>\n The Takeaway for\u00a0All<\/em>\u00a0Cases Requiring Experts<\/strong><\/p>\n The expert witness world is multi-layered and fraught with variables.\u00a0 When seeking an expert, understand the nuances of what is required, as factors can vary depending on the area of law and discipline of expertise involved.\u00a0 Use caution in hiring a ready-made, hired-gun expert, and know that doing so may well raise the level of scrutiny the lower court will apply to that expert\u2019s testimony.\u00a0\u00a0\u00a0 In every case, be sure your expert has adhered to applicable standards and intellectual rigor, and has applied them to the particular case in a way that is properly grounded in both knowledge and experience.<\/p>\n Do you agree with the 6th<\/sup>\u00a0Circuit?\u00a0 Under what circumstances do you think a \u201cquintessential expert for hire\u201d should (or shouldn\u2019t) \u00a0be subject to higher scrutiny?<\/p>\n Note:\u00a0 The 6th<\/sup>\u00a0Circuit case discussed here is\u00a0Lawrence v. Raymond Corp.<\/em><\/a>\u00a0<\/em>(6th<\/sup>\u00a0Circuit, October 5, 2012) citingJohnson v. Manitowoc Boom Trucks, Inc.<\/em>\u00a0484 F.3d 426 (6th<\/sup>\u00a0Cir. 2007) (collecting 6th<\/sup>\u00a0Circuit cases and citing the 9th<\/sup>\u00a0Circuit\u2019s revisit on remand from the Supreme Court known as\u00a0Daubert II<\/em>\u00a0(Daubert v. Merrell Dow Pharmaceuticals, Inc.<\/em>\u00a043 F.3d 1311 (9th<\/sup>\u00a0Circuit 1995)).<\/p>\n\n
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