Daubert Test

Published January 2017
By: Ted Babbitt

 

Crane Co. v. Delisle, 41 Fla. L. Weekly D2133 (Fla. 4th DCA Sept. 14, 2016) was an asbestos case involving a plaintiff who had mesothelioma.   The major issue on appeal involved whether expert testimony offered by both the plaintiff and the defendant was sufficiently reliable to support the trial court’s ruling allowing that testimony under the Daubert test.

Fla. Stat. 90.702 adopts the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and clarified in General Electric Co. v Joiner, 522 U.S. 136 (1997) and  Kumho Tire Co., Ltd. v Carmichael, 526 U.S. 137 (1999).

The trial judge’s responsibility in testing expert testimony in Florida under Daubert and the above cited statute is set forth by the Court at 2134 as follows:

Under section 90.702 and Daubert, 509 U.S. at

597, the trial courts must “act as gatekeepers,

excluding evidence unless is it reliable and

relevant.”  Hughes v. Kia Motors Corp., 766

F.3d 1317, 1328 (11th Cir. 2014).  The trial

courts “are charged with this gatekeeping

function ‘to ensure that speculative, unreliable

expert testimony does not reach the jury’

under the mantle of reliability that accompanies

the appellation ‘expert testimony.’”  Id. at

1328-29 (quoting Rink v. Cheminova, Inc.,

400 F.3d 1286, 1291 (11th Cir. 2005)).  “Whether

an expert’s testimony is reliable depends on

‘the particular facts and circumstances of the

particular case.’”  Id. at 1329 (quoting Kumho

Tire, 526 U.S. at 158).

 

To properly perform its gatekeeping function,

the court must first determine that the expert

is “qualified on the matter about which he

[or she] intends to testify”; second, that the

expert is employing “reliable methodology”;

and third, that the expert’s testimony can

“assist the trier of fact through the application

of expertise to understand the evidence or

fact in issue.”  Id.  In assessing whether an

expert’s methodology is reliable, the court

should consider the following factors:  (1)

whether the theory “can be (and has been)

tested”;  (2)  whether it “has been subjected to

peer review and publication”;  (3) “the known

or potential rate of error” for “a particular

scientific technique”; and (4) whether the

“theory or technique has been generally

accepted by the relevant scientific community.”

Daubert, 509 U.S. at 593-94.

 

The case under discussion involved a question of whether the plaintiff’s exposure to asbestos contained within cigarette filters and other products was sufficient to cause mesothelioma, a signature disease caused by asbestos.  Plaintiff testified that he had smoked Kent cigarettes which had a filter which contained a form of asbestos and had also been exposed to asbestos by working on sheet gaskets manufactured by one of the defendants as well as exposed to numerous other products produced by other nondefendant manufacturers who were potential Fabre parties.

A significant issue was which of these exposures caused the mesothelioma.

The appellate court examined the testimony of each expert.  At 2135 the Court concluded:

Thus, “an expert opinion is inadmissible when

the only connection between the conclusion

and the existing data is the expert’s own

assersions[.]”  McDowell, 392 F. 3d at 1300.

Additionally, where an expert relies solely

or primarily on their experience, the

proponent of the testimony has the burden

“to explain how that experience led to the

conclusion [the expert] reached, why

that experience was a sufficient basis for

the opinion, and just how that experience

was reliably applied to the facts of the

case.”  Frazier, 387 F.3d at 1265.

 

The court utilized this test in examining and weighing the reliability of each expert.  A lawyer, who is the proponent of the expert testimony, must elicit from the expert those elements in order to pass the Daubert test.

In finding that the trial court abused its discretion in allowing into evidence several of the expert opinions, the appellate court repeatedly emphasized that the expert has responsibility to affirmatively explain the scientific basis for their opinion.  It is not sufficient that the expert is well qualified to give an opinion.  In addition, the expert must establish the scientific basis for that opinion and how that opinion was derived.  At 2136 in rejecting one of plaintiff’s experts, the Court found:

Not only did Dr. Dahlgren fail to explain the

Bradford Hill criteria or how they applied, he

did not provide any data or studies of the

association between mesothelioma and

chrysotile asbestos at low levels.  All of

the studies upon which he relied were

studies of mixed types of asbestos, even

though he was giving opinions on causation

from products containing only chrysotile

asbestos.”  And his assumptions on the

equivalency of the potency of all types

of asbestos were also unsupported by

any reliable data.  Instead, they were

based upon his thinking that all

commercial types of asbestos were

probably of the same potency.  As well,

he thought that his opinion that levels

of exposure “significantly” above

background level could cause disease

were “fair.”  Thus, even if the methodology

were appropriate, it was not supported

by any data.

 

On the other hand, the Court found that certain of plaintiff’s experts did sufficiently establish the scientific validity of their opinions even though there weren’t peer review studies which were identical to those opinions.  At 2137, the Court holds:

The trial court did not abuse its discretion

in holding Dr. Millette’s testimony admissible.

He testified extensively as to his methods,

which were simply new applications of

generally accepted methodologies.  It is not

necessary for a particular application of a

methodology to have been peer reviewed

to satisfy admissibility standards.  See

Kumho Tire Co. v Carmichael, 526 U.S.

137, 151 (1999) (“It might not be surprising

in a particular case, for example, that a

claim made by a scientific witness has

never been the subject of peer review,

For the particular application at issue may

never previously have interested any

scientist.”).

 

It is important to understand that Daubert cuts across plaintiff and defendant lines.  The Court found that the opinions of an expert utilized by the defendant to establish that a nonparty had to be placed on the jury verdict as a Fabre defendant also did not pass muster under the Daubert test.  Experts on both sides of the case must meet the standards set forth in Daubert.

This case reviews the responsibility of experts, attorneys, and courts to establish under the Daubert test sufficient scientific basis for expert opinion.

 

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