Two Recent Cases Underscore Daubert’s Flexibility

By Robert Ambrogi Esq

The Daubert standard requires that expert testimony be reliable in order to be admissible. But reliable is not the same as right, two recent federal circuit opinions remind us. The judge’s role is not to determine whether an expert’s testimony is correct, but only whether it is admissible, these opinions say.

In their facts, the two cases are as different as can be. One involved the chilled relationship between two Alaska car rental companies. The other involved a searing fire that destroyed a home, allegedly started by a defective refrigerator.

In both, however, the appellate panels rejected challenges to expert testimony, ruling that the Supreme Court’s guidance in Daubert v. Merrell Dow Pharmaceuticals is not to be applied rigidly and that trial judges have wide discretion to admit expert testimony when it will assist the judge or jury in deciding the case.

The first of the two cases, Alaska Rent-A-Car v. Avis Budget Group, decided March 6 by the 9th U.S. Circuit Court of Appeals, alleged damages resulting from breach of a settlement agreement. To help make its case, Alaska Rent-A-Car presented the testimony of a damages expert. The expert calculated Alaska’s damages by drawing comparisons to the finances of another car rental company in the national market.

Avis challenged Alaska’s damages expert, arguing that the comparison was invalid for several reasons. The situation of the national company was much different from what was at issue here, Avis asserted, and the comparison overlooked significant differences between the workings of the national and Alaska market.

The 9th Circuit agreed with Avis that all of its challenges were well-founded, but the court concluded that none related to the admissibility of the testimony. Rather, Avis’s challenges all related to the impeachability of the testimony.

“Basically, the judge is supposed to screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable,” the court explained. “The district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.”

The reliability requirement of Daubert is “flexible,” the court said. The list of factors that a court is to consider under Daubert and Federal Rule of Evidence 702 “was meant to be helpful, not definitive.” The trial judge has discretion to decide how to test an expert’s reliability as well as to decide whether the testimony is reliable, the court explained.

Expert ‘Applied His Specialized Knowledge’

The 8th Circuit applied similar reasoning to uphold expert testimony in the case involving the allegedly defective refrigerator. In Russell v. Whirlpool Corporation, which was decided on Dec. 17 with a corrected version issued Feb. 6, Whirlpool challenged the testimony of a certified fire investigator.

The investigator concluded that the refrigerator had caused the fire, based primarily on his visual inspection of the fire scene. A second expert, an engineer, relying in part on the investigator’s findings and in part on his own observations, also concluded that an electrical malfunction in the refrigerator ignited the fire.

Whirlpool challenged the fire investigator’s testimony on the grounds that his inspection failed to use any scientific methodology and was therefore unreliable. As the 8th Circuit summarized Whirlpool’s argument, it contended that the expert “simply ‘eyeballed’ three appliances he identified in the debris and concluded the most severely burned was the area of origin.”

Nevertheless, the 8th Circuit found that the investigator’s methods were sufficient to withstand challenge under Daubert. With echoes of the 9th Circuit’s opinion in the Alaska Rent-A-Car case, the court emphasized that the trial judge exercises wide discretion when making reliability and relevancy determinations under Daubert. "This evidentiary inquiry is meant to be flexible and fact specific, and a court should use, adapt, or reject Daubert factors as the particular case demands," the court said.

In this case, the investigator “did more than simply ‘eyeball’ three kitchen appliances,” the court explained. “He observed the relevant evidence, applied his specialized knowledge, excluded alternative causal theories, and reached a conclusion.”

Whirlpool’s arguments, the court continued, went not to the reliability of the testimony, but to the weight the jury should give it. “The jury weighed the conflicting evidence and credited [the investigator’s] testimony, in spite of Whirlpool's challenges. We find no error in this exercise of the adversarial process.”

As each of these cases illustrates, the trial court’s role in performing its gatekeeping function under Daubert is not to assess whether an expert’s testimony could be impeached on cross-examination. Rather, the court’s function is simply to decide whether the testimony is sufficiently reliable to be admissible.

As the 9th Circuit put it in Alaska Rent-A-Car, quoting its own earlier precedent, “Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”

The cases are:

Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., No. 10-35137 (9th Circuit, March 6, 2013).
Russell v. Whirlpool Corporation, No. 12-1451 (8th Circuit, Dec. 17, 2012, corrected Feb. 6, 2013).

Do you agree that the expert testimony challenges went to impeachability rather than admissibility, an issue properly left to cross-examination rather than a Daubert motion? Did the appellate courts go too far in ruling the experts' testimony admissible?

Robert Ambrogi Esq

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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