While we know Daubert motions are favored more and filed more by the defense, whether successful or not, they tend to succeed in slowing the case down and increasing litigation costs.
he opinion from the Ninth Circuit, Wendell v. GlaxoSmithKline LLC, No. 14-16321, 2017 WL 2381122 (9th Cir. June 2, 2017)
, was a bit of a bomb in the legal blogging community, bringing harsh commentary from both sides of the fence. Plaintiffs are applauding
the decision as a “potent retort” to the district court’s abuse of discretion, with defense counsel dubbing
it a poorly-reasoned opinion issued in a “remarkably wrong-headed fashion.”
We’ll let you make the call. Either way, a detailed review of the specific Daubert
factors considered by both courts sheds some very helpful light on what, precisely, is needed from an expert under Daubert
. Are specific case studies required? Can opinions formed solely for purposes of litigation suffice? How many deficiencies is too many?
Plaintiff’s experts in Wendell
were admittedly “highly-qualified.” Wendell
, 2017 WL 2381122. There was no dispute about their qualifications. Rather, the sole focus of both courts’ analysis fixated on the experts’ methodologies and the reliability of those methods under Daubert
. Here’s how they came down on each element:
Opinions Formed Solely for Litigation
Opinions Insufficient for Peer-Reviewed Publication
|In excluding the opinions, the district court highlighted the fact that the opinions were formed “specifically for litigation” and saw it as a negative that the experts had never conducted any independent research on the causal relationship at issue. Meaning, they had never sought to conduct studies or tests to prove this causal relationship merely as a matter of scientific inquiry. Must experts perform this type of research? Not according to the Ninth Circuit, which pointed out there is no requirement that the opinion be “developed independently of litigation.” Id. Daubert states courts are to consider whether experts are testifying “about matters growing naturally” out of their own independent research, or if “they have developed their opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). So, this should be considered. Should it be deciding?
||The Ninth Circuit claims no requirement that the expert's opinion needs to be "developed independently of litigation."
Daubert states courts consider whether experts testify "about matters growing naturally" or if "opinions developed expressly for testifying."
Both experts in Wendell
stated their opinions were based on the necessary reasonable degree of scientific certainty; however, they would not satisfy the standards required for publication in relevant peer-reviewed journals and publications. Is this required? The Ninth Circuit did not think so in finding the district court “wrongfully conflated the standards for publication in a peer-reviewed journal with the standards for admitting expert testimony in a courtroom.” Wendell
, 2017 WL 2381122. If you are readily shaking your head in agreement, why the lower standard for warranting public peer-reviewed sanction of an opinion versus allowing a jury to rely on the opinion in rendering a verdict?
Opinions Not Supported by Case Studies
The opinions of the experts in Wendell
were not based on actual case studies. In fact, the experts readily admitted no animal or epidemiological studies had been conducted showing the causal link to which they testified. You may be thinking, of course not. Not every potential causal link out there can be independently studied before a well-formed, reliable opinion can be reached. The Ninth Circuit would agree with you, but they took it one step further in pointing out the fact that the causal link at issue was newly-discovered. Meaning, the first victims of a mass tort should not be barred from filing suit simply because science has yet to discover, study, or publish about their condition and its potential causes. Imagine the first company facing a trademark infringement suit by Home Depot because they chose a logo using a very notable orange and stenciled letters. An expert is not precluded from opining there is a connection simply because there may not yet be a study demonstrating that the specific Home Depot hue really gets consumers in the mood to tackle home repair.
However, this was yet another strike in the defense’s favor. When considered separately, each of these insufficiencies in the experts’ opinions may not be enough to exclude the experts’ opinions. But when does enough become enough? Can the sheer quantity of deficiencies, each not adequate alone to warrant exclusion of the opinion, ever merit exclusion? These are all very tough questions to answer, with courts coming down on all sides. Daubert
is difficult to both pinpoint and predict. We expect the defense in this matter will file an appeal. It would be an interesting case to follow up to the Supreme Court. We’ll keep an eye out. In the meantime, let us know how you came down on these issues and what you think of Wendell
. Which court got it right?