May 2012

In Newell Rubbermaid, Inc. vs. The Raymond Corporation (No. 10-3912, April 3, 2012), the Sixth Circuit evaluated the trial court’s exclusion of Plaintiff’s expert testimony, and related successful defendant motion for summary judgment because of a failure to have minimally-required expert witness evidence.  In upholding the trial court’s exclusion under the abuse of discretion standard, the Sixth Circuit provided practical guidance regarding what is expected for expert testimony.

The underlying case is a product liability matter alleging faulty design of a forklift.  A Newell employee was seriously injured, and Newell settled all employee claims.  Newell sought reimbursement from the forklift manufacturer (Raymond) for its costs of the employee settlement.  Interestingly, there appeared some judicial hostility towards the plaintiff’s claim as the Court noted that (i) Newell’s initial investigation found that the injury occurred solely because of the employee’s poor training and the conditions in the warehouse, but now Newell claimed that the injury was instead caused by a design defect, and (ii) Newell does not dispute that its expert’s opinion “runs contrary to industry standards”.

For background purposes, the current version of federal Rule 702 reads:


A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b. The testimony is based on sufficient facts or data;

c. The testimony is the product of reliable principles and methods; and

d. The expert has reliably applied the principles and methods to the facts of the case.

The Daubert standard applies the admissibility of expert witnesses’ testimony under rule 702.  Concerns about the expert testimony cannot be referred to the jury to determine if the testimony is to be given any weight; instead, under Rule 104(a), the Court  must determine that it is more likely than not that the expert’s methods are reliably applied to the facts of the case.   The Sixth Circuit further summarized the Daubert standard as follows:

“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).”

In upholding the district court’s refusal to admit Newell’s expert testimony, the Sixth Circuit stated:

The district court identified at least four red flags in [the expert’s] methodology: anecdotal evidence, improper extrapolation, failure to consider other possible causes, and, significantly, a lack of testing.”

The four items to be avoided that are listed in the above quote can be used as a quality control check for what should be done.  Expert witnesses should:

  1. Use unbiased sampling that is representative of what is tested;
  2. Extrapolate results using either the rigors of statistical sampling, or another applicable generally accepted approach;
  3. Consider alternative explanations for the observations at issue; and
  4. Test results to the extent allowable in the circumstances.

This standard should not prevent a special type of expert witness called a summary witness.  In order to avoid tedious tabulation of records by the trier of fact, courts will often find it helpful to have a witness summarize voluminous records, and to testify regarding the results of this compilation.  A summary expert witness might not meet the “”four red flags” identified in the quote above, but this does not limit the usefulness or appropriateness of the judicial efficiency that occurs when a summary witness is involved.  Accountants are excellent summary witnesses because their occupation naturally requires them to prepare document-based factual summaries.

Courts have been far more assertive in limiting expert testimony.  This article summarizes a study on Daubert criteria for challenges to expert witnesses.  Because the “four red flags” are themselves judgmental, this Newell vs. Raymond case will not likely reduce a trial court’s willingness to exclude testimony.  Instead, the case is useful to litigants to provide a checkpoint for evaluating whether the underlying work for the expected testimony should be increased.

Fulcrum Inquiry performs damages analyses and other expert testimony regarding business valuation and forensic accounting.