Daubert Online

First, precedent is of limited value. Countless reported decisions seem to cite with approval what appears to be expert testimony as to particular legal opinions and conclusions. However, in truth, in many cases the expert testimony in question was admitted without objection “and often without anyone even noticing that the testimony includes legal conclusions[.]” Pitman Farms v. Kuehl Poultry LLC, No. 19-CV-3040 (ECT/BRT), 2020 WL 7425234, at *5 (D. Minn. Dec. 18, 2020). In the absence of an objection to the relevant testimony, a court’s reference to the evidence is of no consequence in later cases.

Second, the question as to whether an opinion rules afoul the “rule” often simply boils down to how the opinion at issue is presented:

Thus the question, “Did T have capacity to make a will?” would be excluded, while the question, “Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” would be allowed. McCormick §12.

Fed. R. Evid. 704, advisory committee’s note.

To be sure, in some circumstances there will be no way to present the key aspect of the testimony without seeming to cross the line into impermissible legal conclusion. However, litigants on both sides would do well to recognize that, in many instances the proponent of the testimony in question has substantial control over the ultimate admissibility ruling and thus, in the right circumstances, can rehabilitate otherwise inadmissible legal opinion testimony.

Third, litigants and courts often overlook the fact that the “rule” against experts testifying to legal conclusions dates back long before the current rules of evidence. See, e.g., Roberts v. Cooper, 61 U.S. 467, 481, 15 L. Ed. 969 (1857) (describing the “rule” nearly 170 years ago, “the opinions of the Attorney General may form very persuasive arguments to the court, but cannot be read as evidence to the jury of what the law is, or ought to be. It is the province of the court to instruct the jury as to the principles of law affecting the case, and counsel cannot appeal to a jury to decide legal questions by reading cases to them, or giving in evidence the opinions of public officers”).

In fact, the Federal Rules of Evidence include no blanket proscription against legal opinions. See, e.g., Fed. R. Evid. 704(a) (“An opinion is not objectionable just because it embraces an ultimate issue”); Adams v. New England Scaffolding, Inc., No. 13-12629-FDS, 2015 WL 9412518, at *5 (D. Mass. Dec. 22, 2015) (“despite occasional judicial pronouncements to the contrary, there is no blanket prohibition on expert testimony concerning the law”).

Though the language of the former “rule” against expert legal conclusions still appears in case law, the basis for current rulings on the issue can be traced to the language of Rule 702. That Rule, among other things, permits expert testimony only if “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[.]” Fed. R. Evid. 702(a). Thus, the reason expert legal conclusions are not admissible now—is not by virtue of a “rule” against such testimony—but rather is because such testimony often is not helpful to the trier of fact:

The essential problem is not that such an opinion is a legal conclusion, or that it concerns an ultimate issue, but that it would not “help” the trier of fact within the meaning of Fed. R. Evid. 702.

Adams, No. 13-12629-FDS, 2015 WL 9412518, at *7.

Practitioners facing testimony that might be considered expert legal opinion would be well-advised to keep all three points in mind when approaching such testimony. Thus, the proponent of the legal opinion testimony should endeavor to introduce the testimony in terms of the factual bases leading to the legal conclusion rather than the conclusion itself. See, e.g., Fed. R. Evid. 704, advisory committee’s note (quoting Professor Wigmore’s example “Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” ). Doing so could avoid the issue entirely.

In addition, litigants should be mindful of dubious utility of precedent on this issue. Many prior decisions seeming to approve of testimony that includes legal conclusions often do not involve a direct challenge to the admissibility of the testimony in question. Moreover, even when the at-issue testimony was the subject of objection, practitioners must remember that the ruling on such objections is a matter of discretion. See, e.g., Lestage v. Coloplast Corp., 982 F.3d 37, 49 (1st Cir. 2020) (“Unless the district court entirely abdicated its gatekeeper role, we review the district court’s decision to admit expert testimony for abuse of discretion”).

Third, and most important, counsel should bear in mind that the admission of such testimony is governed by Rule 702. Arguments for and against the admission of such evidence ultimately will be judged against, and therefore should focus upon, whether the evidence in question “will help the trier of fact to understand the evidence or to determine a fact in issue[.]” Fed. R. Evid. 702(a).

Patrick J. Kenny serves as the Editor-in-Chief of Daubert Online and served for many years as a member of, and Expert Witness Chair for the Steering Committee for, DRI’s Commercial Litigation Committee. He is a partner with Armstrong Teasdale LLP where he chairs the firm’s Class Action Practice Group, is one of the leaders in the firm’s Insurance Coverage and Litigation Practice Group, and is an active member in the Appellate Practice Group. He has received numerous recognitions for his insurance and commercial litigation practices including listing by Best Lawyers as the 2016 Insurance Law “Lawyer of the Year” in St. Louis. He also long has been listed as a “Super Lawyer” by Missouri/Kansas Super Lawyers / Super Lawyers Business Edition, he has an AV rating in Commercial Litigation and as an Appellate Lawyer by Martindale-Hubbell and American Lawyer Media (ALM), and he is included in Chambers USA’s listing of America’s Leading Lawyers for Business in its Missouri insurance listing. He previously served as a judicial clerk to the Hon. Pasco Bowman (U.S.C.A., Eighth Circuit). He handles complex litigation and appellate matters including bad faith and insurance coverage disputes, ERISA litigation (both pension and benefits), statutory actions, and matters involving fraud, non-compete agreements, and trade secrets. He has tried jury cases to verdict in Missouri and Illinois, handled and supervised numerous appeals, and served as a neutral in scores of cases. He can be reached at Armstrong Teasdale LLP, 7700 Forsyth Blvd., Ste. 1800, St. Louis, Missouri 63105, (314) 552-6613 (direct), (314) 612-2262 (direct fax), email: pkenny@atllp.com or pkenny@armstrongteasdale.com. For further information see his bio at: https://www.armstrongteasdale.com/patrick-kenny/.

In Whyte, the plaintiff worked in a wheel weld shop, stamping product codes onto wheel plates with a Black & Decker ball-peen hammer. Id. at *1. While hammering, a piece of the hammer chipped and pierced Whyte’s abdomen. Id. He filed suit against Black & Decker claiming manufacturing, design, and warning defects. Id. In support of his claims, Whyte retained Joseph Turek as a materials and warnings expert. Id. After testing, both plaintiff and defense experts agreed that the hammer chipped because the stamping die was harder than the hammer. Id. As such, after discovery, the plaintiff only pursued his defective warning claims. Id. at *2. Black & Decker moved to exclude Turek’s warning label opinions arguing that he was unqualified to testify as a warning label expert and that his warning label testimony was unreliable. Id.

Though Turek’s warning label qualifications were limited, the court would not exclude his testimony on this basis. Black & Decker conceded that Turek was qualified to offer materials testimony but argued that he had no academic experience on product warning labels, had not drafted warning labels, and was unaware of research and publications regarding warning labels. Id. at *4, n. 2. The court explained that while it was a “close call” as to whether Turek was qualified, the Third Circuit has “eschewed imposing overly rigorous requirements of expertise.” Id. at *4 (quoting Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000). Given the liberal qualification standard, the court explained that it would consider Turek’s limited qualifications relevant to the reliability of his testimony. Id.

In addressing the reliability of Turek’s opinions, the court indeed considered his lack of qualifications and also focused on Turek’s failure to use a discernible methodology in reaching his conclusions. Id. at *6–7. In his report, Turek concluded that the hammer lacked warnings informing the user of the ASME safety requirements and “had insufficient safety information … to adequately inform the user of the ASME requirements and known hazardous issues.” Id. at *5. Turek’s deposition testimony revealed that these conclusions were based on the ASME standards themselves, “common sense,” Whyte’s co-workers stating they were not aware of the ASME safety standards, and “personal experience.” Id. at *6–7. For sufficient reliability, the expert’s testimony need not “be supported by the best methodology or unassailable research,” but it must be supported by ‘“good grounds,’ using a reliable methodology.” Id. at *4 (quoting UGI Sunbury LLC v. A Permanent Easement, 949 F.3d 825, 834 (3d Cir. 2020)).

Here, the court reasoned, when deposed, Turek could not point to a single standard that supported his conclusions (including the ASME standard, which Turek claimed was also insufficient), and he failed to explain how he weighed the ASME safety recommendations and his analysis of why the hammer broke to reach his conclusions. Id. at *6. Further, the court reasoned that mere reliance on standards without explanation of how the standard is implemented in the expert’s methodology is unsupported speculation. Id. As such, Turek’s opinions amounted to “subjective beliefs.” Id. Turek’s failure to use a reliable methodology coupled with his limited credentials convinced the court to exclude his warning label opinions.

This case is a good example of defense counsel effectively using deposition testimony to highlight an expert’s shortcomings. Even though Turek’s report referenced his experience, the ASME requirements, and his metallurgy testing, when cross-examined, Turek simply could not articulate a reliable methodology, and the opinions were excluded.

Mark D. Jicka is a member of Watkins & Eager PLLC in Jackson, Mississippi, where he has practiced since 1991. He is currently on the Steering Committee for DRI’s Products Liability Committee and serves as the Expert Witness Chair for that Committee. His practice focuses on defending manufacturers at trial and on appeal. He has handled cases for clients in Mississippi, Alabama, Tennessee, Arkansas, Louisiana, and Kentucky. He also has significant experience in defending large corporations in multi-plaintiff catastrophic causes of action involving both federal and state law. He has served as regional and national counsel regarding discovery issues for both manufacturers of components and finished products. He has also won numerous motions to exclude experts under both Daubert and Frye in both federal and state courts. Mark was selected as a Mid-South Super Lawyer 2006–2009 (Arkansas, Mississippi, and Tennessee) for General Litigation and Personal Injury Defense: Products, and is listed in The Best Lawyers in America (2010, Product Liability). Mark can be reached at Watkins & Eager PLLC, P.O. Box 650, Jackson, Mississippi, ph. 601-965-1900 or by email at mjicka@watkinseager.com.

Caroline K. Ivanov is an associate with Watkins & Eager PLLC in Jackson, Mississippi. Prior to joining Watkins & Eager, she served as a law clerk to the Honorable Leslie H. Southwick, United States Court of Appeals for the Fifth Circuit. Her practice focuses on the areas of health care, tort, and general litigation. During law school, she served as an associate editor on the Law Review, and was a member of the Moot Court Board. Caroline can be reached at Watkins & Eager LLC, P.O. Box 650, Jackson, Mississippi, ph. 601-965-1986 or by email at civanov@watkinseager.com.

After Mr. Smith died of mesothelioma, his wife sued dozens of defendants, asserting that each had potentially exposed him to asbestos. Id. at 484–85. Defendant Schlage Lock Co. moved for summary judgment, citing the lack of evidence of Mr. Smith’s asbestos exposure at Schlage Lock’s plant. The district court granted the motion, and Mrs. Smith appealed. Id. at 486.

At the Fourth Circuit, Schlage Lock again cited the absence of asbestos exposure evidence. Id. at 487. Mr. Smith had admitted that he did not know whether he had been exposed at Schlage’s plant. Id. Schlage Lock, to prove the negative, had tested plant insulation samples, interviewed former employees, reviewed documents, and searched government environmental records for any evidence of asbestos at the plant. Id. at 487–88. It found none. Id.

Mrs. Smith cited her expert’s report as evidence of exposure. Her “asbestos-specializing” medical doctor expert offered testimony on mid-twentieth construction and material science, and—for the 1972-constructed plant at issue—broadly asserted that “insulation materials from at least 1968 to 1972 on new construction would have been asbestos-containing.” Id. at 488.

But the expert cited no plant-specific supporting facts or data, besides the year of construction. Id. at 489. The expert failed to examine Schlage Lock’s records, the company’s corporate representative witness, the company’s insulation sample report, or even Mr. Smith’s medical records. Id. Put differently, he ignored the relevant evidence in the case.

Applying Daubert, the Fourth Circuit dismissed the expert’s opinion that Mr. Smith had been exposed to asbestos at Schlage Lock as impermissible speculation. The opinion used general information without considering the facts pertaining to Mr. Smith or Schlage Lock’s plant. The expert’s failure to consider the actual evidence in the case—the evidence submitted by Schlage Lock—was ultimately condemned as “textbook speculation.” Id. at 489.

Derek M. Stikeleather is a partner at Goodell, DeVries, Leech & Dann LLP in Baltimore, Maryland. He practices primarily in the areas of appellate advocacy and complex litigation with an emphasis on product liability, antitrust, medical malpractice, and class action defense. He has represented Maryland’s most prominent medical institutions and several medical device and pharmaceutical manufacturers, including Pfizer Inc, Dentsply International, Eisai Inc., DePuy Orthopaedics, and Hanger Prosthetics & Orthotics in federal and state court proceedings. He has argued in the appellate courts of Maryland, New York, California, and the District of Columbia, and numerous federal circuit courts of appeals. He is an editor and frequent contributor to the Maryland Appellate Blog. After graduating from law school, Mr. Stikeleather served as a Law Clerk to the Hon. William M. Nickerson in the United States District Court for the District of Maryland.

Matthew H. Tranter is an associate at Goodell, DeVries, Leech & Dann LLP in Baltimore, Maryland. He practices primarily in the area of complex commercial litigation with an emphasis on product liability, intellectual property, and class action defense. He has argued in the Court of Special Appeals and authored winning briefs there. After graduating from the University of Virginia School of Law, Mr. Tranter served as a Law Clerk to the Hon. Peter B. Krauser of the Maryland Court of Special Appeals.

In Prantil, defendant, Arkema, produced Luperox, a combustible, organic peroxide used in plastics manufacturing that requires continuous refrigeration to maintain its stability. Arkema’s facility sat in a flood plain near the Gulf Coast. In August of 2017, Hurricane Harvey approached the coast near the facility. As the hurricane’s landfall became certain, the company continued to produce and store Luperox before it implemented its hurricane preparedness plan. Despite attempts to move the combustible materials to refrigerated trailers on higher ground, rising floodwaters threatened the refrigeration systems, and the company alerted local authorities to the possibility of an accident. Over the next week, nine refrigerated trailers containing combustible materials burned, dispersing smoke and ash into the surrounding area along with contaminated water from the facility’s overflowing wastewater tanks. Local residents inside and outside a 1.5-mile evacuation zone reported various skin and respiratory symptoms, in addition to property damage.

The plaintiffs brought class action in the United States District Court for the Southern District of Texas on behalf of a class of all property owners within a seven-mile radius of Arkema’s facility. They asserted claims under common law negligence, trespass, and public nuisance, in addition to claims under the Resource Conservation and Recovery Act (RCR) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

At the class certification stage, plaintiffs proffered the testimony of three expert witnesses, including a soil remediation specialist, a chemist who traced contaminants found on the plaintiffs' properties to the defendant’s facility, a property appraiser, and multiple physicians who offered opinions regarding toxicity of the contaminants. Wheeler v. Arkema France S.A., No. 4:17-CV-2960, 2019 U.S. Dist. LEXIS 236461, at *4 (S.D. Tex. June 3, 2019).

The district court noted, “whether a full Daubert analysis at the class certification stage is required is unclear.” Wheeler v. Arkema France S.A., No. 4:17-CV-2960, 2019 U.S. Dist. LEXIS 236461, at *8 (S.D. Tex. June 3, 2019) (citing Cone v. Vortens, Inc., 2019 U.S. Dist. LEXIS 52250, 2019 WL 1407420, at *3 (E.D. Tex. Mar. 28, 2019) and In re Katrina Canal Breaches Consol. Litig., 2007 U.S. Dist. LEXIS 82887, 2007 WL 3245438 (E.D. La. Nov. 1, 2007)). “The problem,” the Eastern District explained, “is one of a mismatch between evidence and timing, with ultimate merits evidence being weighted before the conclusion of the discovery phase of the lawsuit.” Id. (citing Cone v. Vortens, Inc., No. 4:17-CV-00001-ALM-KPJ, 2019 U.S. Dist. LEXIS 52250, at *8 (E.D. Tex. Mar. 28, 2019)).

Earlier in 2019, another district court in Texas had suggested that a “relaxed” Daubert standard should apply at the class certification stage. In Cone v. Vortens, Inc., No. 4:17-CV-00001-ALM-KPJ, 2019 U.S. Dist. LEXIS 52250, at *8 (E.D. Tex. Mar. 28, 2019), the Eastern District of Texas noted an unsettled question in the Fifth Circuit regarding the degree of Daubert scrutiny required at the class certification stage. It found that although the Fifth Circuit had not explicitly decided the question, courts in the circuit followed a limited approach, because:

[A] district court may not weigh conflicting expert evidence or engage in a statistical dueling of experts. The question for the district court at the class certification stage is whether the plaintiffs' expert evidence is sufficient to demonstrate common questions of fact warranting certification of the proposed class, not whether the evidence will ultimately be persuasive.

In other words, the Federal Rules of Evidence would be applied in a “relaxed fashion” in that case. Under this “relaxed Daubert” analysis, a district court would limit its Daubert inquiry to the requirements of class certification and ensure that the expert’s opinion has no flaws rendering it inadmissible as a matter of law. Cone v. Vortens, Inc., No. 4:17-CV-00001-ALM-KPJ, 2019 U.S. Dist. LEXIS 52250, at *10 (E.D. Tex. Mar. 28, 2019) (citing Turner v. Murphy Oil USA, Inc., No. 05-4206, 2006 U.S. Dist. LEXIS 985, at *17 (E.D. La. Jan. 11, 2006)).

In contrast, several other district courts in the Fifth Circuit held that a “full” Daubert examination applies at the class certification stage. E.g., Cannon v. BP Prods. N. Am., No. 3:10-CV-00622, 2013 U.S. Dist. LEXIS 142934, at *18 (S.D. Tex. Sep. 30, 2013).

The Prantil district court, noting this disagreement within the Fifth Circuit, applied a “relaxed” Daubert inquiry, excluding the plaintiffs’ damages expert but crediting three other experts and granting the motion for class certification. Prantil, 986 F.3d at 573. Arkema appealed, arguing inter alia that the district court erred by relying on certain expert opinions in rendering its certification decision without ensuring that those expert opinions would be admissible at trial under Daubert.

On appeal, the Fifth Circuit stated that based on “determinative character” of the certification decision,

[W]e ask, when the cementing of relationships among proffered class members of liability or damages or both turns on scientific evidence should insist that the metric of admissibility be the same for certification and trial. We answer that question in the affirmative; the Daubert hurdle must be cleared when scientific evidence is relevant to the decision to certify.

Id. at 575.

The court noted it was joining the Third, Seventh, and Eleventh Circuits in its holding. See In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015); Sher v. Raytheon Co., 419 F. App’x 887, 890–91 (11th Cir. 2011); Am. Honda Motor Co. v. Allen, 600 F.3d 813, 816 (7th Cir. 2010). The Third Circuit, in In re Blood Reagents Antitrust Litigation, explained that a rigorous Daubert analysis at the certification stage was a “natural extension” of the U.S. Supreme Court’s holding in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). In Dukes, the Supreme Court had (somewhat oddly) expressed “doubt” that Daubert did not apply at the class certification stage but did not directly or affirmatively state that it was so. The Fifth Circuit also noted that in Comcast Corp. v. Behrend, 569 U.S. 27, 35, 133 S. Ct. 1426, 185 L. Ed. 2d 515 (2013), the Supreme Court required plaintiffs to submit “evidentiary proof” of compliance with Fed. R. Civ. P. 23. Thus, following the Third Circuit’s logic, the Fifth Circuit explained that if expert testimony could not satisfy the Daubert standard, by definition it could not constitute “evidentiary proof” that Rule 23’s prerequisites have been met.

The Fifth Circuit noted that the plaintiffs did not challenge the applicability of Daubert to class certification, but rather, argued that the district court had “applied a full bore Daubert analysis” in evaluating their experts. The Fifth Circuit disagreed, explaining that the district court had performed its gate-keeping role but that its analysis “reflect[s] hesitation to apply Daubert’s reliability standard with full force” and “was not as searching in its assessment of the expert reports’ reliability as it would have been outside the certification setting.”

Prantil thus brings the Fifth Circuit in line with a growing number of Federal Courts of Appeals which require that expert testimony fully satisfy the Daubert requirements when determining whether to certify a class under Rule 23, and is a positive development towards more uniform application of the Daubert standard in district courts around the country.

Greg Kendall is a partner at Porter Rennie Woodard Kendall, LLP in Cincinnati, Ohio where he practices in commercial trucking and transportation litigation. He focuses a substantial portion of his practice on the litigation of traumatic brain injury claims. His areas of interest include the admissibility of advanced neuroimaging techniques, expert opinions on future disease outcomes, and injury causation opinions in cases involving traumatic brain injuries and complex psychological injury claims. He is licensed to practice in Ohio and Kentucky. Contact him at gkendall@porterrennie.com.

The prospective class members alleged that the panoramic sunroofs (PSRs) of their various Kia automobiles were defectively designed, causing the PSRs to spontaneously shatter and cause injury to the plaintiffs. The district court noted that automotive glass is highly regulated and, thus, undergoes extensive evaluation, testing, and certification. Federal law requires automotive glass to conform to global engineering standards, and manufacturers must certify that their tempered glass passes stringent testing. After receiving initial reports of spontaneous PSR shattering in 2011-2013, Kia investigated to determine the root cause. Kia’s own investigation revealed no design or manufacturing defect, and the National Highway Traffic Safety Administration did not determine a root cause, either. Nor did international investigations turn up a defect.

The plaintiffs, however, believed that a defect existed, and they hired two defect experts—Neil Hannemann and Thomas Read—to support their motion to certify class. Both purported to identify a root cause—a “systematic” design defect created by the combination of constantly bending glass, and weakening ceramic paint, which could not withstand normal points of contact by external forces during driving. Kia moved to exclude both expert reports and the district court granted its motion.

As to Hannemann, he opined that (1) a common defect existed amongst all class vehicles; and (2) the defect was dangerous. The court summarily excluded the second opinion, because it was “obvious and capable of comprehension by a lay person.” The first opinion was supposedly supported by Hannemann’s failure-rate calculations. He concluded that the class vehicles had a 2.14 percent failure rate by dividing the number of “original equipment replacement panoramic sunroof panels” sold by the number of vehicles sold. The district court held that this opinion was not reliable—Hannemann’s failure rate did not reflect actual “failures” because it counted replacement parts sold, not incidents. Multiple replacement parts may be used in any one sunroof repair, and, as Hannemann admitted, he counted every replacement part sold regardless of the reason why.

Next, Hannemann’s opinion that failure rates were “higher than [he] would expect” had no factual basis and was purely speculative because he did not articulate what would be an acceptable rate, nor did he compare his rate to any similar rates in peer vehicles. The district court also found significant the fact that Hannemann did not test his theory, and refused to accept his “say-so.” Finally, Hannemann’s testimony was prepared solely for litigation—he admitted that a key chart in his declaration was created by someone at a plaintiffs’ law firm.

As to Read, that expert opined that (1) the class vehicles’ PSRs had substantially common design features; and (2) these design features resulted in a defect common to all class vehicles. Read performed a “fractographic analysis” to determine the cause of failure of the broken glass on twelve failed Kia PSRs. But Read never inspected, tested, or measured any of the class vehicles. And he never tested any of the characteristics that he claimed caused the common defect, such as size, thinness, curvature, ceramic paint, and attachment to a unibody frame. His failure to establish a definitive link between his fractographic analysis and his opinion that a class-wide defect existed left his opinion as a mere hypothesis.

Because the only evidence that the plaintiffs had of a classwide defect was the expert reports of Hannemann and Read, which were excluded, the district court then denied the motion for class certification. The Kondash case is a helpful case for defense attorneys because it reinforces the well-known principle in the Sixth Circuit that experts in design defect cases should actually test their proposed opinions. Any litigator seeking to exclude will find this case a useful check on rampant expert say-so.

Diana Comes is an associate at Butler Snow LLP in the firm’s Memphis, Tennessee office. She focuses her practice on commercial litigation and appellate advocacy in state and federal courts. She can be reached at Butler Snow, 6075 Poplar Avenue, 5th Floor, Memphis, TN 38119, 901.680.7340 or diana.comes@butlersnow.com.

The plaintiff in Chen alleged that she had been subjected to a hostile work environment at the Internal Revenue Service based on her national origin and race and subjected to retaliation for reporting discrimination, in violation of 42 U.S.C. §1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000, et seq. Chen, 2020 WL 5819869, at *1. In support of her claims, she retained an expert in industrial-organizational psychology whose qualifications were not challenged. Id. at *1–2. The expert opined in his report that the plaintiff “was subjected to a barrage of pervasive behaviors” that, “[i]n the absence of additional information,” appeared to be “forms of discrimination and harassment based on race and national origin,” and he categorized supposed evidence of discrimination and harassment. Id. at *1. However, the majority of what he reviewed and cited as “evidence” consisted of the plaintiff’s allegations from her original complaint, which had since been amended. Id. He cited only four other documents produced in discovery or attached to the plaintiff’s original complaint, including her curriculum vitae. Id. The expert did not review or consider statements made under oath by the plaintiffs’ co-workers and supervisors during an administrative investigation, documents produced during that investigation and in discovery, or depositions taken in discovery. Id. at *2. The court rejected the plaintiff’s representations that the expert interviewed her, reviewed responses to her third amended complaint, and received certain “deposition findings,” because the expert did not identify any of those items in his report as bases for his opinion. Id. at *3.

Acknowledging that “an expert’s failure to consider certain evidence generally is an issue that goes to the weight of the expert’s opinion, not its admissibility,” the court in Chen nevertheless found that the expert’s opinion failed to satisfy the reliability requirements under Rule 702 and was therefore inadmissible. Chen, 2020 WL 5819869, at *4–5. Rule 702 requires that expert testimony be “based on sufficient facts or data.” Id. at *2 (quoting Fed. R. Evid. 702). Allegations in a complaint “are not facts” and “are not evidence that can create a triable issue of fact.” Id. at *3. Consequently, complaint allegations “cannot provide a reliable factual foundation for expert testimony.” Id. This is consistent with case law excluding expert testimony that is “based upon speculation, unsupported assumptions, or conclusory allegations” or on assumed facts of which there is no “affirmative proof.” See id. (quoting Buscaglia v. United States, 25 F.3d 530, 533 (7th Cir. 1994); and Sommerfield v. City of Chicago, 254 F.R.D. 317, 326 (N.D. Ill. 2008)). The court cited district court decisions from other jurisdictions finding that proposed expert testimony based largely upon allegations in a complaint are not “based on sufficient facts or data” or are otherwise unreliable. Id. (citing Wasilewski v. Abel Womack, Inc., No. 3:10-cv-1857 (VAB), 2016 WL 183471, at *3 (D. Conn. Jan. 14, 2016) (finding in products liability case that exclusive reliance by expert on complaints in other lawsuits to establish facts of other accidents would be unreliable methodology); Mosby v. Railey, No. 5:03-cv-00167-Oc-GRJ, 2005 WL 8159837, at *3 (M.D. Fla. July 29, 2005) (excluding sociology expert’s proposed testimony, based largely on plaintiff’s amended complaint, as not based on sufficient facts or data); Rowe Ent., Inc. v. William Morris Agency, Inc., No. 1:98-cv-08272 (RPP), 2003 WL 22272587, at *10 (S.D.N.Y. Oct. 2, 2003) (excluding proposed testimony on discrimination because opinions based on complaint allegations and limited depositions were not based on sufficient facts or data and were not the product of reliable principles)).

Rule 702 also requires that expert testimony be “the product of reliable principles and methods.” Chen, 2020 WL 5819869, at *2 (quoting Fed. R. Evid. 702). By relying so heavily on the plaintiff’s “alleged side of the story without considering potentially contrary evidence,” the expert in Chen “did not use a reliable method to arrive at his conclusions.” Id. at *4. In so holding, the court found instructive Smith v. Illinois Dep’t of Transp., 936 F.3d 554, 558–59 (7th Cir. 2019). Chen, 2020 WL 5819869, at *4–5. In Smith, the Seventh Circuit affirmed a district court’s exclusion of proposed testimony from an expert who it found relied only upon plaintiff-curated records and thereby omitted a substantial set of facts from her analysis, finding that the expert’s “reliance on an anemic and one-sided set of facts casts significant doubt on the soundness of her opinion.” Smith, 936 F.3d at 558–59. The district court in Chen likewise looked to a series of decisions finding that cherry-picking evidence or ignoring relevant data is not a reliable method. Chen, 2020 WL 5819869, at *4 (quoting Van v. Ford Motor Co., 332 F.R.D. 249, 269 (N.D. Ill. 2019) (“Experts who engage in cherry-picking of the evidence fail to satisfy the scientific method and Daubert.); Cates v. Whirlpool Corp., No. 1:15-cv-05980, 2017 WL 1862640, at *15 (N.D. Ill. May 9, 2017) (“Ignoring relevant data is not a scientifically valid method.”); and LeClercq v. The Lockformer Co., No. 1:00-cv-07164, 2005 WL 1162979, at *4 (N.D. Ill. Apr. 28, 2005) (expert’s “disregard of data undermine[d] the reliability of [his] entire opinion”)).

The court in Chen rejected the plaintiff’s argument that her expert’s reliance primarily on her own allegations was appropriate because it would be “unreasonable” to require an expert to review the more than 3,500 pages of documents produced. Chen, 2020 WL 5819869, at *3. To the contrary, the court found that “there is nothing unreasonable about expecting [the expert] to review the actual evidence from this case.” Id. The court also rejected the plaintiff’s contention that her trial testimony and evidence would provide a sufficient foundation for her expert’s opinions, because it is the plaintiff’s burden to demonstrate that her expert’s opinion rests upon a reliable evidentiary foundation. Id. at *4. Ultimately the court excluded the plaintiff’s expert’s opinions in their entirety and precluded the plaintiff from relying on them at summary judgment or trial. Id. at *5.

In egregious cases where a plaintiff’s expert has relied almost exclusively on allegations in a complaint as the bases for proposed opinions, has failed to review the evidence itself, or has disregarded a significant amount of relevant data, the Chen decision may prove a convincing authority for excluding the proposed testimony altogether on reliability grounds. Just as the decision denouncing opinions of such origin as fundamentally unreliable draws on case law from products liability and other types of actions beyond the hostile work environment and retaliation claims at issue in Chen, the court’s language and reasoning do not limit the litigation context in which the Chen decision is deployed.

Elaine M. Stoll is an associate with Ulmer & Berne LLP in Cincinnati, Ohio, where she defends products liability litigation and pharmaceutical, medical device, and mass tort claims. She focuses her practice on critical motions and briefs at all stages of litigation and through appeal, and she has extensive experience challenging and defending the admissibility of expert and scientific evidence. She is licensed to practice in Ohio, Kentucky, and Florida and has authored motions filed in state and federal courts in 24 states. Contact her at estoll@ulmer.com.

The issue before the court in Pitman was whether certain Minnesota-specific statues and regulations applied to contracts between the defendants, “Minnesota chicken growers,” and the plaintiff, the California corporation which was the sole member in the limited liability company with which the defendants had contracted. The Minnesota laws were at issue because they overrode the “general rule that a parent corporation is not liable merely by virtue of its status as a parent for the debts of its subsidiary.” Id. at *1.

The parties filed cross motions for summary judgment. The defendants supported their motion with an expert affidavit. The plaintiff also moved to exclude the expert testimony offered by the defendants based on the defendants’ alleged failure to disclose the expert properly, and also on the claim that the proffered expert testimony amounted to legal opinions. The district court agreed on both points.

On the disclosure issue, the district court walked through an array of inconsistent representations by the defendants concerning their intent to offer expert testimony, ultimately finding that defendants’ use of the same was a surprise and caused unfair prejudice to the plaintiff.

The court then noted that the defendants also “all but admit” that the two opinions offered by their expert “concern legal matters.” Id. at *4. The defendants first argued that the expert’s testimony should be admissible because the expert offered opinion testimony that merely was consistent with the state of the law as set forth in a prior treatise he had authored. In rejecting that justification, the district court reasoned:

No doubt lawyers properly may cite treatises for legal propositions. But the prohibition on expert testimony regarding legal matters would accomplish nothing if the authors of those treatises were allowed to testify as experts regarding those same legal propositions. Why hire a lawyer to argue a legal point when you can hire an expert to give sworn testimony?

Id.

The district court also noted that the parties’ cross motions for summary judgment centered upon a disputed construction of the applicable law, noting that regardless of how the expert’s testimony might be couched:

An expert cannot simply opine as to his or her view of a disputed point of law, and competing experts cannot offer competing legal opinions.

Id. at *5 (quoting Adams v. New England Scaffolding, Inc., No. 13-cv-12629-FDS, 2015 WL 9412518, at *6 (D. Mass. Dec. 22, 2015)).

The court therefore excluded the proffered testimony, both as untimely disclosed expert testimony, and as testimony that would be inadmissible in any event. The court then conducted its own analysis as to the applicability of the Minnesota laws and regulations, found them inapplicable, and ruled in favor of the plaintiff.

The decision is interesting in its own right in that it considers in some depth how a court should distinguish between proper expert testimony and inadmissible legal conclusions. The decision also is worthy of attention in that, following the district court’s ruling, the defendants appealed. Among the many issues they have identified for appeal is the question of whether the exclusion of their expert’s opinions was error “even though there is no blanket prohibition on expert testimony regarding the law.” Thus, the Eighth Circuit, too, soon might be providing practitioners with additional guidance in the area.

As always, if you should have any thoughts or feedback on this column, please do not hesitate to contact me.

Patrick J. Kenny serves as the Editor-in-Chief of Daubert Online and served for many years as a member of and Expert Witness Chair for the Steering Committee for DRI’s Commercial Litigation Committee. He is a partner with Armstrong Teasdale LLP where he chairs the firm’s Class Action Practice Group, is one of the leaders in the firm’s Insurance Coverage and Litigation Practice Group, and is an active member in the Appellate Practice Group.  He has received numerous recognitions for his insurance and commercial litigation practices including listing by Best Lawyers as the 2016 Insurance Law “Lawyer of the Year” in St. Louis. He also long has been listed as a “Super Lawyer” by Missouri/Kansas Super Lawyers / Super Lawyers Business Edition, he has an AV rating in Commercial Litigation and as an Appellate Lawyer by Martindale-Hubbell and American Lawyer Media (ALM), and he is included in Chambers USA’s listing of America’s Leading Lawyers for Business in its Missouri insurance listing. He previously served as a judicial clerk to the Hon. Pasco Bowman (U.S.C.A., Eighth Circuit). He handles complex litigation and appellate matters including bad faith and insurance coverage disputes, ERISA litigation (both pension and benefits), statutory actions, and matters involving fraud, non-compete agreements, and trade secrets. He has tried jury cases to verdict in Missouri and Illinois, handled and supervised numerous appeals, and served as a neutral in scores of cases. He can be reached at Armstrong Teasdale LLP, 7700 Forsyth Blvd., Ste. 1800, St. Louis, Missouri 63105, (314) 552-6613 (direct), (314) 612-2262 (direct fax), email: pkenny@atllp.com or pkenny@armstrongteasdale.com. For further information see his bio at: https://www.armstrongteasdale.com/patrick-kenny/.

Defendant Valencia-Lopez is a truck driver who transported 15,000 kilograms of bell peppers from Mexico to Arizona. During a customs inspection, officers found over 6,000 kilograms of marijuana hidden in the bell pepper packages. Valencia-Lopez was convicted of four drug felonies for the transportation and importation of marijuana. At trial, Valencia-Lopez claimed he acted under duress, and that armed gunmen kidnapped him at gunpoint for several hours; seized his truck; and told him to continue driving and pretend that nothing happened, or he and his family would be killed.

To convict Valencia-Lopez, the government produced an expert, U.S. Immigration and Customs Enforcement (“ICE”) Supervisory Special Agent Matthew Hall, to opine on the likelihood of drug trafficking organizations entrusting a large quantity of illegal drugs to the driver of a commercial vehicle who was forced or threatened to comply. Agent Hall testified that the likelihood of this happening was “[a]lmost nil, almost none.”

Before trial, the government indicated that it intended to offer Agent Hall’s testimony to demonstrate that “drug-trafficking organizations do not typically use unknowing couriers.” Valencia-Lopez moved to preclude this testimony, and the government amended the proposed testimony to include a “risk-management analysis that the use of threatened couriers would place the narcotics at a higher risk for seizure than using non-threatened couriers.”

Valencia-Lopez filed another motion to preclude the testimony and specifically requested a Daubert hearing. He argued that there was no methodology to substantiate Agent Hall’s proposed testimony. The district court denied Valencia-Lopez’s motion but stated that there “certainly . . . can be voir dire of the expert . . . to assure that he is qualified to testify as to these matters” at trial.”

At trial, the government presented Agent Hall’s testimony to the jury. He testified that, based on his experience of going undercover, he had insight into how drug trafficking organizations operated. He did not, however, have experience of going undercover in Mexico. After direct examination was complete, the government moved to qualify him as an expert. Valencia-Lopez objected and requested to voir dire Agent Hall. Valencia-Lopez argued that Agent Hall lacked any experience directly working with drug cartels in Mexico and that he had not adequately explained the basis for his specialized knowledge. The court overruled the objection and ruled that the objection went “more to the weight of the evidence” as opposed to admissibility.

Valencia-Lopez again objected and requested a Daubert hearing through voir dire. The court overruled the objection, did not allow voir dire, and found a Daubert hearing was not required “particularly in light of the issues that were raised in the Daubert hearing about testing and such that don’t apply to experts such as Agent Hall.”

Here, the court of appeals found that the district court abused its discretion by failing to make any finding regarding the reliability of Agent Hall’s testimony, instead allowing him to testify as to how drug trafficking organizations operate and dismissing Valencia-Lopez’s argument as going to the weight, not admissibility. The appellate court noted that reliability becomes even more important with “experience-based” expert opinions rather than “science-based” because the opinion is not subject to same type of routine testing, error rate, or peer review types of analysis. The court found that Agent Hall’s testimony should have been subject to the same “gatekeeping function” or admissibility function in a Daubert hearing or in voir dire.

The court found that the error was not harmless as the main issue at trial was whether Valencia-Lopez was under duress, and Agent Hall’s testimony went directly towards this issue. The court vacated Valencia-Lopez’s convictions and remanded the case for a new trial.

In summary, the court held that the government had not carried its burden that the error was harmless, and it was not permitted to speculate that the jury both disregarded Agent Hall’s testimony and disbelieved Valencia-Lopez’s testimony regarding his duress. In light of this decision, practitioners should be diligent in making the proper pre-trial and trial objections for reliability and admissibility, especially relating to “experience-based” experts.

Dana C. Kopij is a member in the Seattle office of Williams Kastner. She is licensed to practice in Washington and Oregon. Her practice focuses on civil defense litigation, with an emphasis on product liability and mass torts, including asbestos litigation. Ms. Kopij concentrates her practice on developing and implementing defense strategies in state and federal courts for national asbestos products manufacturers, suppliers, and contractors. Additionally, she has handled a number of personal injury and general liability matters on behalf of some of the largest transit authorities in Washington State. She is a member of DRI (Toxic Torts and Environmental Law Committee) and the Washington Defense Trial Lawyers Association. Dana can be reached at dkopij@williamskastner.com or (206) 628-6777.