July 2014

The 8th Circuit Court of Appeals has reversed a district court decision to grant summary judgment based on excluding three plaintiff experts regarding causation. While the district court ruled the experts did not reliably exclude alternative causes of injury and therefore their testimony was inadmissible under Daubert, the Court of Appeals concluded that this was not an appropriate application of Daubert and that the experts’ opinions could be of assistance to the trier of fact.

The case, Scott Johnson, as guardian ad litem of H.T.P., a minor (“Johnson”) v. Mead Johnson & Company, LLC (“Mead”), involved a product liability claim that an infant contracted meningitis from contaminated infant formula. Johnson’s experts undertook a differential diagnosis, which ruled in the formula as a potential cause of the illness, while ruling out other possible causes. However, the district court agreed with Mead that the Johnson experts’ differential diagnoses failed to address issues contrary to their conclusions and that they used unreliable methodology.

In reversing the district court decision, the Court of Appeals explained that Daubert and the Federal Rule of Evidence 702 (see this article for a related discussion of these rules) “greatly liberalized what had been the strict Frye standards for admission of expert scientific testimony…and attempt to relax the previous roadblocks to expert testimony”. This application was extended to all expert testimony (not just “scientific”) in Kumho Tire Co. v. Carmichael. The Court of Appeals noted that “cases are legion that, correctly, under Daubert, call for the liberal admission of expert testimony” and provided the following examples:

  • United States v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011): we resolve doubts about the usefulness of expert testimony in favor of admissibility
  • Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006): expert testimony should be admitted if it “advances the trier of fact’s understanding to any degree“
  • Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001): Rule 702 “clearly is one of admissibility rather than exclusion“
  • Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir 1997): exclusion of expert’s opinion is proper “only if it is so fundamentally unsupported that it can offer no assistance to the jury“
  • Wyeth, 686 F.3d at 625: district courts are admonished not to weigh or assess the correctness of competing expert opinions
  • Daubert, 509 U.S. at 590, 596: As long as the expert’s scientific testimony rests upon “good grounds, based on what is known“, it should be tested by the adversary process with competing expert testimony and cross-examination, rather than excluded by the court at the outset

In the current case, the Court of Appeals admonished the district court for having

“violated these liberal admission standards by resolving doubts in favor of keeping the testimony out and relying upon its own assessment of the correctness of the expert opinions. By doing so, it disallowed the adversarial process to work. Considering the factor in dispute is whether the evidence is trustworthy enough to assist the trier of fact…the key inquiry is whether the methodology of the three experts…was reliable enough to assist the trier of fact. If the district court believed there were better grounds for some alternative conclusion… or there were some flaws in the experts’ methods…, because the expert testimony in this case was within “the range where experts might reasonably differ,” the jury, not the trial court, should be the one to “decide among the conflicting views of different experts.” Kumho Tire, 526 U.S. at 153.”

And further described that:

“The district court abused its discretion in excluding Johnson’s experts. The methodology employed by Johnson’s experts was scientifically valid, could properly be applied to the facts of this case, and, therefore, was reliable enough to assist the trier of fact. Daubert, 509 U.S. at 593-94. With the expert testimony proposed, Johnson has created an issue of fact for a jury on the issue of causation and is entitled to attempt to prove his claim…”

In this decision the Eight Circuit firmly supports that doubt should favor admission. This ruling demonstrates once again that with regard to topics where experts might reasonably differ, the trier of fact should be the one to assess the reliability of conflicting opinions.

Fulcrum Inquiry performs damages analysis and related expert testimony.