It seems much legal attention has been devoted to Daubert lately – and with good cause. From the 1st Circuit’s Milward opinion last March allowing a less stringent “weight of the evidence” methodology – an approach previously rejected in a 5th Circuit case - to a reported increase in challenges, Daubert seems to be dominating legal headlines.
As the role of experts becomes all the more critical in the world of litigation, many legal commentators are now pondering if a Daubert challenge has become the new summary judgment. In cases requiring expert testimony, courts seem progressively willing to “connect the dots” between a Daubert challenge and summary judgment. Quite simply, failing a Daubert challenge and the resulting exclusion of an expert’s testimony can mean dismissal on summary judgment – and the end of the road for your case.
Bielskis v. Louisville Ladder, Inc.
This is precisely what happened in Bielskis v. Louisville Ladder, Inc. , when plaintiff Raymond Bielskis, who was injured when a scaffold he was standing on collapsed, brought a products liability action against the scaffold’s manufacturer. The district court decided to grant defendant manufacturer’s motion for summary judgment after barring testimony of plaintiff’s expert on grounds the expert’s methodology failed to meet Daubert factors. On appeal the 7th Circuit upheld the decision – concluding that without the testimony of his expert, Bielskis lacked the evidence needed to keep his case afloat, and therefore dismissal on the summary judgment motion was proper.
In cases that require expert testimony to sustain a cause of action or prove a material fact at issue, the message courts are giving is loud and clear - make sure your experts utilize reliable methodology and can withstand a Daubert challenge. Otherwise, your case may be over before it ever begins.
Bricklayers and Trowel Trades Int’l Pension Fund v. Credit Suisse First Boston
Already this year another U.S. District Court case worthy of Daubert-related discussion may have taken the rationale behind the Bielskis decision one step further. Decided this January, the U.S. District Court for the District of Massachusetts excluded an expert’s testimony after a Daubert hearing and then promptly granted summary judgment sua sponte – which means literally “of its own will or motion; voluntarily” - without waiting for a current summary judgment motion from the other side.
The case involved a class action securities fraud case. Plaintiffs had asserted a “fraud-on-the-market” theory of recovery, alleging that misleading reports on which class investors relied in purchasing AOL stock artificially inflated the price and caused investors to suffer harm when the price of the stock declined. To prove their theory of recovery, plaintiffs’ expert relied on an “event study” prepared to measure the impact of defendants’ allegedly misleading statements on the value of the AOL stock. Upon defendants’ motion to preclude the expert’s opinion, the judge convened a full Daubert hearing.
At the conclusion of the hearing, the court found that pervasive fatal flaws in the expert’s methodology rendered his study and testimony inadmissible. In doing so, the court further determined that plaintiffs could not raise a triable issue of fact on loss causation, and without further ado granted summary judgment sua sponte in favor of defendants.
It is worth noting that defendants had made an earlier motion for summary judgment which was denied under a different judge who had retired from the bench before disposition of the case, but the transferring judge didn’t wait for the defendants to bring or renew such a motion. Rather, perhaps in reconsideration of the earlier denied motion, he simply determined that summary judgment was appropriate - and then granted it.
The court was well within its statutory authority - FRCP 56 gives courts latitude to grant summary judgment independent of any motion, following notice and a reasonable time to respond. Although usually accomplished through the motion of a party, the rule authorizes a court to grant summary judgment on its own accord. The Committee Notes on Rules for the 2010 Amendment add clarification, stating “…the court may grant summary judgment for the nonmoving party; grant a motion on legal or factual grounds not raised by the parties; or consider summary judgment on its own.”
Regardless of the rationale behind the judge’s decision in Bricklayers, both this case and Bielskis are deserving of attention from attorneys and experts alike - failing a Daubert challenge can trigger the end of your case under summary judgment, and the courts have wide latitude in making that decision.
For attorneys, it has never been more crucial to choose an expert who utilizes reliable methodology and can withstand a Daubert challenge. Be sure you know your expert’s history and purview of testimony experience, and vet him or her thoroughly to make sure that the scientific methodologies utilized are based on accepted principles in the industry.
Is too much emphasis being placed on experts to make or break a case?
Do you think failing a Daubert challenge should result in dismissal of a case on summary judgment?