'Gatekeeper' Review must be More Than Cursory

By Robert Ambrogi Esq
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.


Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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