Experts – Daubert

Huss v. Gayden, 585 F.2d 823 (5th Cir. 2009), in the context of a denial of en banc rehearing, features an exchange of thoughtful opinions about Daubert issues in a medical malpractice case, focusing on the respective roles of judge and jury.  It continues to be a useful guide to individual judges’ attitudes about that basic issue of judicial power.

Echoes of that discussion can be heard in Goodner v. Hyundai Corp., 650 F.3d 1034 (5th Cir. 2011), which examined whether expert testimony was required in a products liability case tried under Texas substantive law, and Roman v. Western Manufacturing, which examined a $1mm-plus verdict about severe injuries from a pump malfunction.  691 F.3d 686 (5th Cir. 2012).  Roman found that two qualified mechanical engineers met Daubert even though they lacked extensive experience with “stucco pumps,” declining to “make expert certification decisions a battle of labels.”  Id. at 693.

The Court also rejected technical challenges to the type of pump reviewed by the experts and the plausibility of their factual assumptions about its operation.  See id. at 696 (“There was certainly contrary evidence, but that was for jurors to weigh.”).  Accord Wellogix, Inc. v. Accenture, LLP, No. 11-20816 (May 15, 2013) (allowing testimony from an expert whose “experience as a software developer and forensic analyst, and his fluency in different programming codes, qualified him as an expert on the subject of his testimony: software programming and source codes,” and noting that he did not need “particular expertise in the oil-and-gas industry, or complex services procurement, to help the jury understand software concepts and terms’).

While not a Daubert case, a recent case about the science of weather shows its outer limits.  A barge moored at a facility operated by Lafarge came loose during Hurricane Katrina and caused extensive damage.  The district court granted summary judgment to Lafarge, finding that the plaintiff’s damage theory was not scientifically credible in light of the observed weather conditions at the time.  St. Bernard Parish v. Lafarge North America, Inc., No. 13-30030 (Dec. 19, 2013, unpublished).

The Fifth Circuit reversed, noting eyewitness testimony that was not consistent with the defendant’s expert analysis. The Court distinguished and limited Ralston Purina v. Hobson, 554 F.2d 725 (5th Cir. 1977), which involved an unusual theory about the behavior of starving chickens, on the ground that its plaintiff could not prove the facts that his theory required.

Conversely, an expert was not allowed to opine that a railroad crossing was unsafe and required active warning devices.  Brown v. Illinois Central Railroad, 701 F.3d 531 (5th Cir. 2013).  He contended that the crossing had “‘narrow’ pavement, ‘skewed’ angle, ‘rough’ surface and ‘steep’ incline” but did not tie those conclusions to a guideline or publications, relying instead on “education and experience.”  He also admitted that visibility at the crossing was adequate under the Transportation Department’s standards.

Accordingly, the Fifth Circuit affirmed the district court’s exclusion of his testimony under Daubert, calling it “transparently subjective.”  Similarly, in Moore v. International Paint LLC, No. 13-30281 (Nov. 15, 2013, unpublished), the Fifth Circuit affirmed the exclusion of expert testimony about a plaintiff’s cumulative benzene exposure, citing problems with several facts he assumed about the plaintiff’s work schedule and conditions.  The Court reminded: “To be sure, reliable expert testimony often involves estimation and reasonable inferences from a sometimes incomplete record. . . . Here, however, the universe of facts assumed by the expert differs frequently and substantially from the undisputed record evidence.”

The “other end of the telescope” of these issues — sufficiency on a causation issue where expert testimony is not required as a matter of law — was addressed in detail by the Court in Huffman v. Union Pacific Railroad, 675 F.3d 412 (5th Cir. 2012).  There, the Court found that even though expert testimony was not required on the specific injury causation issue presented, the plaintiff had nevertheless not met his burden.

The Court reviewed several Daubert rulings in the toxic tort case of Johnson v. Arkema, Inc., 685 F.3d 452 (5th Cir. 2012).  Under an abuse-of-discretion standard, it affirmed the exclusion of experts based on weaknesses in reliance upon (1) analysis of whether the materials at issue belonged to a “class of chemicals” known to cause disease; (2) state and federal exposure guidelines; (3) animal studies; and (4) the “temporal connection” between exposure and illness.  Id. at 460-67.

The Court then affirmed the exclusion of an opinion based on a “differential diagnosis,” concluding that it was based on an unreliable presumption about general causation.  Id. at 468.  The Court concluded by reversing on a causation issue that did not require expert testimony, finding that the temporal connection between exposure and certain chronic injuries was close enough to allow trial — while also finding that the connection was too attenuated as to related chronic injuries. Id. at 471.  A dissent took issue with the majority’s reasoning as to one well-credentialed toxicology expert.  Id. at 472.