No Rule 26 Right to Daubert Costs

By Robert Ambrogi Esq
A federal discovery rule requiring an opposing party to pay expert-related fees and expenses does not apply to pretrial Daubert hearings, the 5th U.S. Circuit Court of Appeals has ruled.

Although Fed. R. Civ. P. 26(b)(4)(C) allows a party to recover discovery costs relating to expert witnesses, the rule does not extend to the $64,000 in expenses these plaintiffs incurred in securing their expert's testimony at the Daubert hearing, the court said.

"A Daubert hearing is not a discovery proceeding but an evidentiary hearing designed to screen expert testimony," the court reasoned. "Appellants fail to give any persuasive legal argument as to why Fed. R. Civ. P. 26 should be extended outside the discovery context."

The ruling came in a toxic tort case in which the 5th Circuit also upheld the trial court's exclusion of expert testimony linking the toxic chemical benzene to plaintiffs' cancers. The trial court found that none of the more than 50 studies the expert relied on gave an adequate basis for his opinion on causation.

Benzene at Issue

The case involved two maritime tankermen, Heath Knight and Thomas Ingerman, who were exposed to various toxic chemicals on their jobs, including benzene. Knight claimed that the benzene caused him to develop Hodgkins lymphoma, while Ingerman alleged it was the cause of his bladder cancer.

After filing suit together, the two plaintiffs hired Dr. Barry Levy, a physician who the court described as "a highly qualified epidemiologist." In 2005, the district court held a Daubert hearing to determine whether Dr. Levy's testimony was admissible to show that benzene was the cause of plaintiffs' cancers.

Relying on more than 50 studies, Dr. Levy testified that benzene was the cause of their cancers. The district court excluded all 50 studies, finding that some failed to isolate benzene as a cause of cancer and that others were statistically insignificant. Given its exclusion of these studies, the district court concluded that Dr. Levy's testimony failed to satisfy Daubert and it entered summary judgment in favor of defendants.

The plaintiffs then filed a motion under Rule 26 asking that the court order defendants to pay the expenses they incurred in having Dr. Levy testify at the Daubert hearing. The district court denied this motion, holding that there is no right to reimbursement for Daubert costs in Rule 26.

No Proof of Causation

On appeal, the 5th Circuit noted that plaintiffs would have had to prove both general and specific causation in order to have succeeded in their case-in-chief. General causation would require proof that the toxic substance was capable of causing a particular type of injury within the general population. If plaintiffs established that, they then would have to show that the substance caused their specific injuries.

The trial court, based on the Daubert hearing, concluded that Dr. Levy had failed to provide a sufficient foundation for his testimony regarding the general-causation link between benzene and cancer. On appeal, the plaintiffs argued that the trial court set too high a bar for their general causation evidence.

But the 5th Circuit, after reviewing the district court's findings concerning these studies, affirmed, saying that a district court has broad discretion under Daubert "to determine whether a body of evidence relied upon by an expert is sufficient to support that expert’s opinion."

While acknowledging that "in epidemiology hardly any study is ever conclusive," the circuit court nonetheless found no basis to overturn the lower court's findings.

"Even if one of the studies relied on by Dr. Levy provided a plausible basis for general causation, the district court, after weighing the 'reliability' and 'relevance' of such evidence, finding one or the other lacking, could still reach the conclusion that the evidence was inadmissible," the court said.

"Of the over fifty studies relied upon by Dr. Levy, none gave an adequate basis for the opinion that the types of chemicals appellants were exposed to can cause their particular injuries in the general population."

Given this, the district court did not abuse its discretion in excluding the expert's testimony, the court held. Rather, it was reasonable to conclude "that the analytical gap between the studies on which he relied and his conclusions was simply too great and that his opinions were thus unreliable.

The 5th Circuit went on to say that Dr. Levy's testimony as to causation failed at least two other Daubert factors: it was not generally accepted and it had not been published or subjected to peer review. Further, even if he had provided a basis for proving general causation, his studies were not reliable to show specific causation.

Daubert Costs

The district court's ruling denying plaintiffs' request to recover Daubert-hearing costs involved a question of law, the 5th Circuit said, which meant it would review the issue de novo.

Rule 26(b)(4)(C) requires a party seeking discovery from an expert to pay the expert a reasonable fee for time spent responding to discovery. It also provides for payment to the opposing party "a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert."

Plaintiffs contended that this provision entitled them to recover costs incurred in having their expert testify at the Daubert hearing. The 5th Circuit disagreed, noting that plaintiffs "failed to cite any legal authorities supporting their contention." The Daubert hearing is not a discovery proceeding covered by Rule 26, the court reasoned, but an evidentiary hearing designed to screen expert testimony.

The case is Knight v. Kirby Inland Marine Inc., No. 06-60134 (5th Cir. April 4, 2007).



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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