Day on Torts
The 6th Circuit Court of Appeals has sent a clear signal on what the federal courts in Tennessee and the other states that comprise the 6th Circuit should look at when reviewing a Daubert challenge to expert testimony.
In Newell Rubbermaid, Inc. v. The Raymond Corporation, No. 10-3912 (6th Cir. April 3, 2012), the plaintiff corporation filed a subrogation against defendant seeking recovery of monies plaintiff paid to plaintiff’s employee who was injured while using a forklift manufactured by defendant.
The Plaintiff’s expert was Benjamin T. Railsback. The Court explained that "Railsback, a forensic engineer with no experience in driving a Raymond forklift and only limited experience in driving forklifts from other manufacturers, opined that the Dockstocker was defectively designed because it did not have a rear guard door to prevent the operator’s feet from accidentally leaving the operator compartment. Raymond moved to exclude Railsback’s testimony."
The district court concluded that ‘ did not have sufficient training or experience with forklifts to qualify him as an expert witness, that his testimony was not relevant because it involved different models of forklifts than the one at issue in the present case, and that his methods of extrapolating from anecdotal evidence and his failure to test his proposed alternative designs rendered his opinion unreliable." The court then granted the defendant summary judgment, holding that in the absence of expert testimony there was no proof of defective design.
The 6th Circuit affirmed, first setting forth this test for expert testimony in Tennessee and the other courts in this circuit:
A district court’s task in assessing evidence proffered under Rule 702 is to determine whether the evidence “both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). One key consideration is “whether the reasoning or methodology underlying the testimony is scientifically valid.” Id. at 592-93. The inquiry is “a flexible one,” and “[t]he focus . . . must be solely on principles and methodology, not on the conclusions they generate.” Id. at 594-95. An expert who presents testimony must “employ[] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
Although there is no “definitive checklist or test” for meeting this standard, Daubert set forth a number of factors that typically “bear on the inquiry.” 509 U.S. at 593. These include whether the theory or technique in question “can be (and has been) tested,” whether it “has been subjected to peer review and publication,” whether it has a “known or potential rate of error,” and whether the theory or technique enjoys “general acceptance” in the “relevant scientific community.” Id. at 593-94 (internal quotation marks omitted). Red flags that caution against certifying an expert include reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity. Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009). In addition, if a purported expert’s opinion was prepared solely for litigation, that may also be considered as a basis for exclusion. Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th Cir. 2007).
The 6th Circuit found that the district court "identified at least four red flags in Railsback’s methodology: anecdotal evidence, improper extrapolation, failure to consider other possible causes, and, significantly, a lack of testing. These concerns have been deemed sufficient to warrant exclusion in prior cases. See, e.g., Best, 563 F.3d at 177-78; Brown, 432 F.3d at 647-48; Dhillon, 269 F.3d at 869-70.
The appellate court gave the plaintiff a solid bitch slap with the following: "
Newell argues on appeal that the only evidence available to Railsback was anecdotal in nature. Perhaps this should have been an indication to Newell that it needed a different expert. In any event, Newell has not attempted on appeal to clarify Railsback’s testing methodology or the evidence supporting his position that a rear guard door would have prevented the injury here. In addition, Newell does not dispute Raymond’s assertion that Railsback’s expert opinion favoring a rear guard door runs contrary to industry standards.
Ouch.