By
Robert J. Ambrogi
Bulletin Newsletter: October 2007
Courts must provide litigants with an opportunity to be
heard before ruling on the admissibility of expert testimony
– and in all but exceptional cases that requires courts to hold
hearings with full briefing and argument, the Supreme Court of Mississippi
ruled in an en banc opinion issued October 4th.
Reviewing a personal-injury case in which two girls were severely
burned in a school bus fire, the Supreme Court held that the trial judge
erred when he struck an expert's affidavit without a hearing and entered
summary judgment. The court reversed the judgment and remanded the case.
While other federal and state courts have recognized that in
limine hearings are often the best way to ensure that expert-witness
issues are decided fairly, the Mississippi court made clear that hearings
should be held in all but the most drastic of cases. At the same time,
it stopped short of requiring hearings in every case.
"We generally recommend that the trial court conduct an in limine hearing
specifically on the subject, as this procedure will result in full briefing
and argument by the parties regarding the proposed expert testimony," the
court said in an opinion written by Presiding Justice Oliver E. Diaz Jr.
"This will not only assist the trial court in its function as evidentiary
gatekeeper; it will provide a fuller record for an appellate court should the
parties contest the evidentiary ruling,"
Diaz continued. "While an in limine hearing may not be
necessary in all cases, it does provide the most efficient manner of
addressing the issue in many cases."
But the Supreme Court's chief justice, James W. Smith Jr., dissented
from the opinion, joined by three other justices. He argued that the
trial judge properly decided the motion without holding a hearing, because
the affidavit was clearly defective. "The expert's affidavit was
inadmissible because it was mere unsupported speculation, subjective
belief, and conclusions without any basis provided by reliable scientific
methods and procedures," he wrote.
MOTION TO STRIKE
The underlying litigation involved the two students' suit
against the Amory School District after their bus caught fire and they
were severely burned. Amory contended that a defect in the bus's propane
fuel system caused the fire and it sought indemnity from Charles Clement,
whose company had converted the buses from gasoline to propane.
When Amory's expert prepared an affidavit in support of this theory,
Clement sought to strike it as insufficient under the standards of Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which
the Mississippi Supreme Court adopted in 2003 as the state standard governing
expert testimony.
The trial court, without holding a hearing, granted Clement's motion
to strike. In a brief order, the trial judge said that the opinions of
Amory's expert were "nothing more than unsupported conclusions which
are devoid of a factual basis and not the product of reliable principles
and methods." Having struck the affidavit, the court went on to
enter summary judgment for Clement, finding that Amory offered no credible
expert testimony to support its theory of causation.
THE BEST METHOD
On appeal, the Supreme Court restated its holding in another
2007 case that litigants should have an opportunity to be heard on the
admissibility of expert testimony. The question in this case was whether
the parties had such an opportunity.
The trial court had based its decision to strike on its review
of the affidavit and of a rebuttal affidavit provided by Clement. It
held no hearing on the motion to strike, but it did hold a hearing on
the motion for summary judgment that Clement filed together with the
motion to strike. At that hearing, Amory argued that its expert should
be given further opportunity to expound on his theory.
Turning to federal cases for guidance on the issues, the Supreme
Court noted that two federal circuits have issued opinions encouraging
– but not requiring – trial judges to hold in limine hearings
before making Daubert determinations. Hearings make sense, the
court said, as the most cautious approach to complex evidentiary issues.
"Perhaps before Daubert, such a determination could be made without
a hearing, but the continual evolution of science and the growing intricacies
of litigation mandate that we take the trial court’s role as 'gatekeeper'
seriously," the court explained. "A hearing is simply the best method
of guarding the admission of expert testimony."
Still, not every case requires a hearing, the court added. "Common
sense informs us that in some cases an expert may be drastically unsuited
to testify; for example, for a lack of standing within the proffered
field or a discredited background." Even then, however, the parties
must be given some other opportunity to be heard, such as an opportunity
to file substantive briefs.
That said, the court was unequivocal in concluding that hearings
should be conducted in all but the most clear-cut cases. Because Amory
had no opportunity to be heard here, the court said, the expert's affidavit
was improperly struck and summary judgment improperly granted.
In his dissent, Chief Justice Smith asserted that not every Daubert motion
requires a hearing and that trial courts should be given latitude to
decide how best to measure an expert's reliability.
"[T]he essential requirement is that the parties have an opportunity to
be heard before the trial court makes a decision," he wrote.
"A court need not hold an actual hearing in order to comply with Daubert."
The case is Smith v. Clement, No. 2006-CA-00018-SCT (Miss. 10/04/07).
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