by Robert Ambrogi - Editor
BullsEye Newsletter: May 2006
A federal judge's one-sentence conclusion that a witness qualified
to testify as an expert was not enough to show that he had
correctly exercised his "gatekeeper" function under
Daubert, the 7th U.S. Circuit Court of Appeals decided.
But even though the court should not have allowed the testimony, its error was
not sufficiently substantial to require a new trial, the circuit court said.
The decision sheds light on the extent of the inquiry required of a trial judge
in assessing the qualifications of a proposed expert.
The April 12, 2006 decision in Naeem v. McKesson Drug Company arose out of an
employment dispute. The plaintiff, Sally Naeem, sued McKesson in 1997 alleging
sexual discrimination, retaliation and intentional infliction of emotional distress.
At trial, William Anthony, a professor of management at Florida State University,
testified on her behalf as a human resources expert and gave his opinion as to
whether McKesson followed its own human resources policies in dealing with Naeem.
Prior to trial, the defendants filed a motion in limine seeking to exclude Anthony’s
testimony as inadmissible under Federal Rules of Evidence 402, 403 and 702. The
district court granted the motion in part, excluding his testimony regarding
whether McKesson followed accepted human resource policies, but allowing him
to testify about whether McKesson followed its own policies.
In ruling on the motion in limine, the district judge stated only:
"Anthony has sufficient expertise to be able to assist the
jury in understanding the meaning of a company’s employment
policies."
This was not sufficient to qualify the witness as an expert, the 7th Circuit
said, and the district court's admission of his testimony was therefore an abuse
of its discretion. The opinion was written by Circuit Judge Kenneth F. Ripple
and joined by Chief Circuit Judge Joel M. Flaum and Circuit Judge Michael S.
Kanne.
The court reasoned that, under Federal Rule of Evidence 702 and the seminal case
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district
court is required to perform the role of gatekeeper and to "ensure the reliability
and relevancy of expert testimony."
In making a Rule 702 determination, a judge does not have to recite the Daubert
standard mechanically, the court said, but "it is nonetheless crucial that
a Daubert analysis of some form in fact be performed." The court's one-sentence
statement did not meet this standard.
"[T]he district court’s one sentence, stating that Prof. Anthony has
sufficient expertise, is not enough to show that the district court applied the
Daubert standard; the court provided no analysis of Prof. Anthony’s methodology. … When
a district court fails to consider an essential Daubert factor, such as reliability,
it has abused its discretion."
Although the 7th Circuit said it was a mistake to admit the testimony, it was
not one that required a new trial. The defendants' appeal had specifically objected
to four of Anthony's statements. But of the four, the 7th Circuit found that
two were corroborated by the defendants' own witness, one was elicited by the
defendants' own cross-examination and the fourth was discredited on cross-examination.
"Given that the objectionable testimony by Prof. Anthony was corroborated
by other witnesses, elicited on cross-examination or otherwise discredited on
cross-examination, there was no reversible error in the admission of Prof. Anthony’s
testimony,"
the court concluded.
The full text of the opinion in Naeem v. McKesson Drug Co., Case No. 04-3816
(April 12, 2006), is available through the 7th Circuit's Web site, www.ca7.uscourts.gowww.ca7.uscourts.gov.
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