Complex Litigation

Judicial 'Gatekeeping' of Experts Has Impact

By Michael Hoenig - New York Law Journal - October 17, 2016

A hat-tip to noted Kentucky trial lawyer, John L. Tate, whose article in the October 2016 issue of Law Journal Newsletters' "Product Liability Law & Strategy" newsletter is titled, "Do Daubert Motions Really Work?"1 Tate, a member of that newsletter's Board of Editors, reports on the results of two sizable studies gauging the relative effectiveness of Daubert motions challenging the reliability of proffered experts. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, was the 1993 decision by the U.S. Supreme Court that ushered in a robust era of judicial "gatekeeping" and required that scientific expert testimony had to be "not only relevant but reliable."

Then, in 1997, the Supreme Court issued its decision in General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997), holding that a district court could exclude opinion evidence "that is connected to existing data only by the ipse dixit of the expert." (Ipse dixit refers to an assertion made but not proved). Thus, when there is "too great an analytical gap between the data and the opinion proffered," the court may exclude the opinion. Joiner, 522 U.S. at 146. In the decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999), two years later, the Supreme Court confirmed that the judicial gatekeeping obligation applied not only to testimony based on scientific knowledge but also to testimony involving technical and other specialized knowledge. Reliability of the expert's methodology was a key. And, in Weisgram v. Marley Co., 528 U.S. 440, 442 (2000), the Supreme Court said that expert evidence must meet "exacting standards of reliability." Federal Evidence Rule 702 changes and the Advisory Committee note reflect these rulings.2

The foregoing developments seem weighty enough on paper. Further, experienced litigators surely have engaged in Daubert motion practice witnessing dispositive consequences from time to time. But, comprehensively speaking and across the board, has Daubert gatekeeping had a profound impact? That is the question Tate's article addressed, particularly in the wake of the two massive studies issued, respectively, in October 2015 and May 2016. The first study is by the Searle Civil Justice Institute of the Law & Economics Center at George Mason School of Law. The title is "Timing and Disposition of Daubert Motions in Federal District Courts: An Empirical Examination." [http://bit.ly/2c4szHc] This report covers the years 2003 to 2014 and examined the outcomes in some 2,127 Daubert motions from 91 federal district courts.

The second (May 2016) study was issued by PriceWaterhouseCoopers (PWC) and is titled, "Daubert Challenges to Financial Experts" [http://pwc.to/2bQPmFz], discussing trends and Daubert outcomes for the years 2000 to 2015 involving motions focused on financial experts in some 2,014 cases. Tate's article duly notes that the two studies are "remarkable for the number of decisions analyzed by the researchers." The PWC study on outcomes regarding financial experts is, as Tate helpfully observes (and cites), a follow-up to PWC's report in 2014 analyzing 7,299 cases involving financial expert testimony. [See http://pwc.to/2cq57F3] These large data sets result in some informative analyses.

Success Rates

Tate highlights some findings in the Searle Civil Justice study. Thus, the vast majority of Daubert motions—some 71 percent—were made by defendants while plaintiffs made 29 percent. Further, nearly half of the cases involved multiple Daubert motions (averaging some 2.1 motions per case). Nearly two-thirds of the motions challenged medical or technical opinions. "Medical" experts (e.g., physicians, psychologists, toxicologists, etc.) made up 31 percent of the Daubert challenges. Engineering witnesses were the target 24 percent of the time, and accountants at 10 percent.3

As for success rates, defendants' likelihood of at least a partial grant of their motions was over 50 percent for five lawsuit categories (antitrust, contracts, torts, civil rights, RICO and consumer credit). For a so-called "full grant," i.e., a ruling giving the moving party all the relief requested by the motion, defendants won 25 percent of the time.4 When plaintiffs moved on Daubert grounds, they also did well (some 40 percent obtaining some relief and 18 percent getting a "full grant.") Plaintiffs scored their best results in real property and contracts cases.5

The PWC study on Daubert challenges to financial experts, says Tate, confirms that "the most common reason" for excluding financial opinion testimony is "lack of reliability." Out of 2,014 cases analyzed, 896 cases resulted in partial or complete exclusion of financial testimony, an average exclusion rate of 44 percent. The percent partially or wholly excluded in product liability cases was 48 percent; in securities litigation, 47 percent; intellectual property, 49 percent; and bankruptcy, 47 percent.6 Of the Daubert financial expert rulings appealed (some 64 appeals), a significant majority were upheld by the appellate court. (89 percent where the testimony was allowed by the trial judge; 80 percent where it was at least partially excluded).7

Even without the benefit of statistical analyses of large data sets of cases, litigators can readily see from individual cases that judicial screening of experts pursuant to Daubert's reliability criteria operates with considerable impact. But this does not happen automatically. Well-crafted motions are critical.

Talc Powder

One can see dynamics of intensive judicial gatekeeping in a New Jersey state court's dismissal, on Sept. 2, of two lawsuits claiming that Johnson & Johnson's talc-based product (J&J's Baby Powder) caused the plaintiffs to develop ovarian cancer. The decision throwing the cases out is called Carl v. Johnson & Johnson.8 The two dismissed claims are part of a deluge of more than 1,000 lawsuits filed in federal and state courts claiming defendant's talcum powder caused cancer. Two juries in St. Louis earlier this year sided with plaintiffs there and rendered large damage awards.

In the Carl case, however, New Jersey Superior Court (Atlantic County) Judge Nelson Johnson examined the expert evidence offered by each side because defendants had filed a motion to bar the testimony of plaintiffs' experts and, if this application were granted, also moved for summary judgment. Judge Johnson stated the question before the court: "Have plaintiffs shown that their experts' theories of causation are sufficiently reliable as being based on a sound, adequately-founded scientific methodology, to wit, that they are based upon methods upon which experts in their field would reasonably rely in forming their own (possibly different) opinions about the cause(s) of each plaintiff's ovarian cancers?"

The court acknowledged its role as a "gatekeeper" who must assess "whether or not the hypotheses of causation advanced by plaintiffs' experts are sufficiently reliable to be presented to a jury." The court conducted a hearing, after earlier examining reports, abstracts of epidemiology studies and peer-reviewed articles. Over 100 treatises relating to talc, cancer and miscellaneous related scientific issues were reviewed by the court prior to and during the hearing. The court attached to its opinion Appendices A through E cataloguing a portion of the articles discussed at the hearing together with public pronouncements by agencies possessing authoritative knowledge on cancer.

The court focused on the experts' methodological deficiencies. For example, one "dazzling" expert witness for the plaintiff, Dr. Graham Colditz, could not explain the biological mechanism for how talc causes cancer. Thus, his opinion was an ipse dixit and had "all the earmarks of a made-for-litigation presentation."

The court concluded that, though eminently qualified, the experts' areas of scientific inquiry, reasoning and methodology "are slanted away from objective science and towards advocacy." The opinions failed to demonstrate "that the data or information used were soundly and reliably generated and are of a type reasonably relied upon by comparable experts." Accordingly, defendants' motions to bar the experts' testimony and for summary judgment were granted.

Endnotes:

1. 35 LJN's Product Liability Law & Strategy, No. 4, pp. 3-5 (Oct. 2016).

2. For a comprehensive discussion on these and post-Daubert decisions, see my chapter, "Gatekeeping: Reliability of Expert Testimony Under Daubert (And Frye)", in the N.Y. State Bar Ass'n Book, Preparing For And Trying The Civil Lawsuit, vol. 2, chapt. 14, pp. 14-3 to 14-115 (2016 revision). For a helpful, handy guide on how to successfully use expert witnesses, see T. Budd, E. Cottle & C. Hutchinson, "Expert Witness Answer Book, 2016" (PLI), which contains extensive information on Daubert considerations in question-and-answer format.

3. See Tate, supra n. 1, at p. 3; Searle Report, at pp. 6-7.

4. See Searle Report, at pp. 8-9; Tate, supra n. 1, at p. 4.

5. Searle Report, at pp. 8-9; Tate, supra n. 1, at p. 4.

6. Tate, supra n. 1, at pp.4-5; PWC Report, at pp. 28-19 (and figure 7).

7. Tate, supra n. 1, at p. 5; PWC study, at p. 35 (and figure 15).

8. 2016 N.J. Super. Unpub. LEXIS 2102 (N.J. Super. Ct. Sept. 2, 2016).

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