To Daubert or not to Daubert

Ruling clarifies when expert testimony requires pretrial review
By Robert J. Ambrogi
Bulletin Newsletter: December 2006

The defective ladder is a much-maligned icon of products liability law. But when an engineering expert gives his opinion on why a ladder fell, is his testimony based on observation or science? The answer is important, because it dictates whether a trial court must conduct a gatekeeper hearing under Daubert in advance of the expert's testimony.

In a recent Connecticut case, Prentice v. Dalco Electric Inc., the trial judge allowed the expert to testify without such a hearing. This was a mistake, the state Supreme Court ruled on appeal, overturning a $1.2 million verdict for the plaintiff.

The Supreme Court said that the expert's testimony was based on scientific evidence and should have been subject to a hearing under State v. Porter, 241 Conn. 57 (1997), cert. denied, 523 U.S. 1058 (1998), the case in which Connecticut adopted Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

"We conclude that [the expert's] opinion was scientific evidence within the meaning of Porter, and that the trial court abused its discretion by permitting [the] expert opinion testimony without first assessing the validity of the methodology underlying his opinion as part of a Porter hearing," the court said.

The Wind and the Ladder

The plaintiff in the case, David Prentice, worked for a sign company. He and a co-worker had gone to the defendant's business, Dalco Electric, to install a sign. When they arrived, they realized their ladders were too short and informed Daniel Luft, Dalco co-owner, they would return another day.

Luft offered them Dalco's extension ladder to use. Prentice said they would need two ladders to install the sign, but agreed to use it only to take measurements. Luft then brought out a second ladder and stood it against the building next to the first. Prentice declined this one because it appeared to him to be in poor condition.

After climbing the first ladder, Prentice began to take measurements. As he did, the second ladder fell towards him, hitting his ladder and knocking him to the ground. He sustained serious injuries.

In the resulting lawsuit, wind became a key issue. The ladder that fell bore a safety label warning against its use in high winds. The wind was steady on the day of the incident, all agreed, but it was not high.

The plaintiff sought to establish that the ladder could have fallen in such wind only if it was defective and improperly set up. To this end, he introduced the expert testimony of Mervin Strauss, a professional forensic engineer and accident reconstructionist.

Before trial, the defendants moved to preclude Strauss' testimony. The trial judge declined to rule on their motion and overruled their objections to his testimony during the trial. After the jury awarded the plaintiff $1.2 million in damages, the defendants filed a motion to set aside the verdict. In denying the motion, the judge concluded that the expert's testimony was admissible and did not require a Daubert hearing.

Jumping the Daubert Hurdle

On appeal to the Supreme Court, the only issue was whether the trial court properly admitted Strauss' testimony without first holding a Daubert hearing.

The Supreme Court began its analysis by noting that, while expert testimony is generally admissible based on the expert's special skill or knowledge, an additional hurdle applies when the testimony is based on scientific evidence: The trial judge must assess the validity of the scientific evidence to ensure its reliability.

"[S]cientific evidence, and expert testimony based thereon, usually is to be evaluated under a threshold admissibility standard assessing the reliability of the methodology underlying the evidence and whether the evidence at issue is, in fact, derived from and based upon that methodology," the court explained.

In order for the trial judge to make this assessment, the court continued, the party seeking to admit the testimony must provide the judge with a sufficient articulation of the methodology underlying the scientific evidence.

The plaintiff contended that the expert's conclusion was based on observation, not scientific method, and therefore required no hearing. But the court found to the contrary.

"[H]is opinion that the force created by the prevailing wind conditions … was not sufficient to have caused a ladder that had been set up properly and was free of defects to fall over, was dependent on the result of scientific measurement and calculation," the court said.

Further, the court noted, by exempting Strauss' testimony from a Daubert hearing, the trial judge never had the chance to hear plaintiff's explanation of the methodology underlying the scientific evidence. "[T]he trial court was obliged to hold a hearing and the plaintiff was obliged to explain the methodology underlying Strauss’ opinion. This information was necessary to assess the scientific reliability and validity of Strauss’ opinion."

Not every error in a trial judge's evidentiary rulings requires a new trial, the Supreme Court said. In this case, however, Strauss' testimony was significant to the outcome because it was the only evidence to support the plaintiff's principal theory of liability, the court said.

"We conclude that the trial court’s improper decision to admit Strauss’ testimony without first conducting a Porter hearing likely affected the result of the trial and, therefore, warrants a new trial."

The case is Prentice v. Dalco Electric Inc., Case No. SC 17444 (Oct. 17, 2006).

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