By Michael Hoenig - New York Law
Journal - November 20, 2013
The fact that
courts have a prodigious responsibility to carefully screen
expert testimony not only for "relevance" but also for
"reliability" is beyond question. This task is called "gatekeeping."
If reliable and relevant, the expert's testimony enters through
the admissibility gate. If unreliable, the gate is shut and
entry is denied. This judicial screening burden was amply
described (and illustrated) in the U.S. Supreme Court's famous
trilogy of decisions in the 1990s—Daubert, Joiner
and Kumho Tire.1 The Daubert
reliability criteria are reflected in Federal Rule of Evidence
702 and the Advisory Committee comments.
This article surveys a potpourri of recent gatekeeping rulings
readers may have missed. Lengthy analysis of case facts is
omitted. Rather, the pith and substance of the decisions are
specified along with interesting insights or glosses that should
be noted. The first case in our gatekeeping survey is
Dash v. Mayweather, a
Sept. 26 decision by the U.S. Court of Appeals for the Fourth
Circuit.2 This was a copyright infringement action
against the boxing champion, Floyd Mayweather, and others
complaining that the song "Yep," which was played during
Mayweather's entrance at two World Wrestling Entertainment (WWE)
events, infringed plaintiff's copyright in a musical composition
called "Tony Gunz Beat" (TGB). Following discovery and a number
of stipulations, the South Carolina district court bifurcated
liability and damage issues addressing the latter first.
In response to defendants' motions for partial summary judgment
on damages, plaintiff filed a report by an expert, concluding that plaintiff Anthony Dash was entitled to
over $1 million in lost profits. The expert came to that figure by
calculating the value of Mayweather's appearance at the events
relative to the net profits derived at the events. He then
calculated the value of "Yep" to Mayweather's appearances based
on the minutes "Yep" was used relative to the length of
Mayweather's performance. The court held a hearing on the
summary judgment motions and then granted them. The district
court held that the report estimation of TGB's market
value and lost profits was nothing more than speculation.
On plaintiff's appeal, the Fourth Circuit affirmed. It detailed
the variety of ways a copyrighted work's market value can be
measured. Regardless of the measure used, the copyright holder
"must prove the existence of a causal connection between the
alleged infringement and some loss of anticipated revenue."
The expert used four "benchmark license fees paid to other artists
for use of their songs at a Wrestlemania event." The Fourth
Circuit deemed such estimation "too speculative."
Taken as a whole, the expert's report demonstrated only that (1)
certain music plays an important role in professional wrestling
matches; (2) the WWE recognizes the value of such music through
its operation of an in-house music business; (3) the WWE played
a song that included Dash's now-copyrighted beat at two events,
Wrestlemania XXIV and the Aug. 24, 2009, RAW broadcast; (4) the
WWE paid four well-established artists licensing fees for use of
their recognizable works at Wrestlemania XXIV; and (5) sometime
prior to 2011, plaintiff Dash received some recognition (but no
compensation) for his work as a musical artist.
The appellate court concluded that it would have to build
"inference upon inference" to conclude that these facts were
sufficient to stave off defendants' proof that plaintiff's works
and, especially TGB, do not have a fair market value. The court
detailed a variety of ways new artists can establish damages.
But here, there was "too great an analytical gap between the
[benchmarks] and the opinion offered" to oppose the summary
judgment motion. Similar failures in causation proof infected
the opinions on lost profit damages. Accordingly, the grant of
summary judgment was affirmed.
Morritt v. Stryker Corp.,3
plaintiff sued for an allegedly defective polyethylene tibial
insert that was a component of the knee prosthesis implanted in
plaintiff. Plaintiff's expert, referred to in the decision only
as Dr. Montalbano, was an orthopedic surgeon and plaintiff's
treating physician who submitted a declaration in opposition to
defendant's motion for summary judgment. Montalbano had over a
decade of experience using Stryker knee systems. In addition to
his normal treatment opinions, however, Montalbano also opined
that premature polyethylene wear caused the knee injury and that
a manufacturing or material or design defect caused the tibial
insert to fail. Defendant moved in limine to preclude Montalbano
from opining on issues relating to biomedical engineering and
medical device manufacturing. After enumerating applicable
gatekeeping reliability standards, the U.S. Magistrate Judge
addressed Montalbano's opinions regarding the alleged product
The court held that Montalbano should not be permitted to offer
his opinion regarding the source of the polyethylene wear.
Montalbano averred that he performed a "differential diagnosis"
which excluded certain alternative causes of the tibial insert
failure, i.e., malalignment and bone cement. However,
Montalbano's exclusion of bone cement as an alternative cause
went well beyond the "reasonable confines" of his clinical
expertise. Indeed, his expertise simply did not extend to
manufacturing processes, biomedical engineering, material
science and bone cement pathology.
The "differential diagnosis" used by Montalbano also was
inadmissible because he failed to employ a reliable scientific
methodology to reach such a conclusion. While there may be
instances where differential diagnosis is sufficient to support
an expert's causation opinion, here Montalbano did not observe
the tibial insert under a microscope after it was removed, did
not analyze or test the polyethylene and did not cite to
manufacturing records or pertinent scientific literature. His
qualifications to reliably exclude certain alternative causes
and to "rule in" a manufacturing or material or design defect
Additionally, Montalbano's differential diagnosis relied
impermissibly on information learned outside of treatment.
Earlier, he was precluded by the court from relying on the
reports of Stryker's experts in his differential diagnosis. That
preclusion of certain facts and opinions "casts further doubt on
the reliability of his differential diagnosis." Indeed, at his
deposition, Montalbano admitted that he told his patient that he
did not have an explanation why the insert failed prematurely.
Accordingly, the products liability opinions were precluded.
District Court Judge Roslynn R. Mauskopf adopted the
magistrate's report and recommendation "in its entirety."
MMG Insurance v. Samsung Electronics,4
a house fire was alleged to have started in a home theater
system manufactured by Samsung and sold by Best Buy. The
insurance company paid the loss and, via subrogation, brought
products liability claims. One of plaintiff's expert witnesses
did certain burn testing which the court excluded upon
defendants' motion. The reason was the failure to show that the
testing was performed according to "reliable principles and
methods." Moreover, while the expert's report referred to
testing to determine the voltage and temperature of an exemplar
unit's power supply in different modes of operation, the report
made no mention of the expert's attempts to set fire to various
Thus, while plaintiff's Rule 26(a)(2)(B) disclosure talked about
"burn testing," the actual report did not describe it. An
expert's report must contain "a complete statement of all the
opinions the witness will express at trial and the bases and
reasons for them." The report did not comply with Rule
26(a)(2)(B). The fact that the expert had mentioned "burn
testing" at his deposition was unavailing.
Rule 26(a)(2) generally "does not allow parties to cure
deficient expert reports by supplementing them with later
deposition testimony." Were it otherwise, the function of expert
reports would be "completely undermined." The reason for
requiring the expert report to be provided before a deposition
is taken is to allow the opposing party to use the report to
examine the expert at the deposition. The disclosure failure
here was not "harmless."
One of the interesting rulings in the MMG Insurance case
involved defendant's motion to prevent plaintiff from referring
at trial to other fires caused by similar Samsung products. In
litigation parlance such proof is called "other accidents"
evidence or "OSI" ("other similar incidents"). This is a common
battleground in litigation involving mass-produced products.
Such proof can be quite effective yet highly prejudicial. The
interesting twist in this case is that the evidence of other
fires was in the form of postings on third-party Internet sites.
Defendants argued such Internet reports were inadmissible
hearsay. They also complained that the postings did not show
that the other fires occurred under substantially similar
conditions to those in this case. Further, defendants contended
that the postings' prejudicial effect would outweigh any
In response, plaintiff argued that the postings were not being
introduced for the truth of the matter they assert but to
impeach defendant's expert. He relied on Samsung's data
indicating there are no other reports of fire involving the
company's product in reaching his conclusion that the product
did not cause the house fire. Additionally, evidence that other
such product-caused fires may have existed but that the defense
expert's failure to look into them was a challenge to his
The court observed that five postings were in controversy. They
were submitted to third-party websites such as amazon.com,
pricegrabber.com, and AVForums.com. Although they involved
Samsung home theater systems, none of them had the same model
number as the system here. The postings failed to identify the
circumstances of the alleged fires in any detail. Two simply
said the unit "caught fire," while others offered cursory
descriptions of "flames" or "smoke." Only one of the postings
identified its author by a full name. The others were submitted
under a first initial and last name, pseudonymously ("SECTOR
SE7EN"), or anonymously.
Based on these shortcomings, the court ruled that the web
postings were not "creditable information" that could justify
cross-examining the defense expert as to his "failure to look
into them" in developing his opinion. The court also noted that
plaintiff's expert likewise did not rely on these kinds of
materials in concluding the unit caused the fire.
Notwithstanding the foregoing, the court observed that Federal
Civil Procedure Rule 403 would exclude information "if the
danger is too large that the jury will misuse it in damaging
Here, that danger was substantial relative to the low probative
value of the reports. Moreover, defendant would be unable to
rebut the inference they would raise because the postings are
"effectively anonymous" and describe incidents that occurred
several years ago. These factors made it impossible to
investigate the reports and develop facts in rebuttal.
Calisi v. Abbott Laboratories,5
the drug Humira was alleged to have caused plaintiff's lymphoma.
Humira was approved by the FDA to treat moderate to severe
rheumatoid arthritis. However, the drug is a "TNF" (tumor
necrosis factor) inhibitor, also known as a TNF-blocker drug.
Lymphomas have been observed in patients treated with TNF
blocking agents including Humira. Plaintiff sued for negligence
and breach of warranty. She claimed that Abbott failed to warn
her treating rheumatologist about alleged risks of lymphoma from
Abbott moved for summary judgment and to exclude testimony by
all four of plaintiff's experts. One of those was plaintiff's
"warnings" expert, Dr. Michael Hamrell.6 The court
granted exclusion of Hamrell's testimony on warnings. Why?
Hamrell concluded that the Humira warning label was inadequate
and misleading and proposed an alternative warning that could
have been given. Primarily, he deemed the Humira label
"incomplete," particularly regarding general and statistical
results of clinical trials. However, the purpose of a label's
information is to allow a medical doctor to make a properly
informed decision when prescribing a drug.
Thus, the key issue was whether the alleged
accurate-but-incomplete information would be adequate
information to such a physician. Hamrell concluded it did not.
But did he have a reliable basis for his opinion? Plaintiff had
to show that her expert's opinion on adequacy was not "connected
to existing data only by the ipse dixit of the expert." Hamrell
must have had a sufficient basis for understanding what
information is needed by a doctor in making his prescribing
decision. Plaintiff, however, did not make this showing.
Hamrell was not a medical doctor and did not have qualifications
to opine on what is clinically appropriate in treating patients.
He was not an expert in psychology, cognitive decision making or
behavioral science. Nor did he point to experience-based facts
as to how the label's relevant target audience (medical doctors)
would interpret the Humira labels. Based on deposition testimony
which the court quoted, it concluded that the expert was not
qualified to opine "as to the adequacy for prescribing purposes
or confusion that this may generate in the label's target
audience." Additionally, he would not be qualified to testify as
to his proposed alternative label's impact on prescribing
physicians, i.e., whether they would find the information
conveyed to be adequate. Interested readers seeking guidance on
how to parse a "warnings" expert's opinions and "Daubertize"
them should study the court's opinion in depth.
Davis v. Kawasaki Motors,7
a motorcycle suddenly stalled and failed to accelerate. The
injured plaintiff sued for defective design and manufacture,
claiming that the voltage regulator caused the mishap. An expert
submitted his report after the court granted an extension to do
so. It was titled "Preliminary Expert Report" but failed to
identify any defect in the voltage regulator. Rather, the report
stated that work had not been completed and reserved "the right
to change [this] opinion if new or further information is
presented." The expert mentioned the results of a test he
performed but concluded that the test was inadequate and
suggested a second, different test of the regulator that would
be done. Defendant filed a motion to strike the report and for
Defendant claimed the report was inadequate since it was
"preliminary" in nature. Further, it failed to find a defect in
the regulator and proposed additional testing beyond the
deadline for filing expert witness reports. Plaintiff responded
to the motion but a few days later filed a motion to dismiss the
lawsuit. Instead, plaintiff filed a suit against Kawasaki in
state court and there added the state Department of
Transportation as a party. Defendant opposed the attempt at
voluntary dismissal since it would negate a valid defense—the
untimeliness of the expert report.
The federal court refused to dismiss the case, struck the
expert's report as incomplete and granted summary judgment. At
the heart of the court's reasoning is that the rule requiring
full expert disclosure is intended to avoid "sketchy and vague"
information. Rule 26 "is not designed to permit continuous
testing by a party should it be dissatisfied with its prior
results." Plaintiff had adequate time to conduct the tests or to
seek additional time for further testing.
The foregoing survey reflects that robust judicial gatekeeping
of experts ensues and that counsel on both sides need to
exercise diligence in structuring or challenging the reliability
of expert testimony and complying with rules on expert
is a member of Herzfeld & Rubin.
1. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993); General Electric v. Joiner, 522 U.S. 136 (1997);
Kumho Tire v. Carmichael, 526 U.S. 137 (1999).
2. 731 F.3d 303, 2013 U.S. App. LEXIS 19675 (4th Cir. Sept. 26,
3. 2013 U.S. Dist. LEXIS 135861 (E.D.N.Y. Sept. 23, 2013) (Judge
Roslynn R. Mauskopf), adopting in its entirety the Report and
Recommendation of U.S. Magistrate Judge Ramon E. Reyes, Jr.,
2013 U.S. Dist. Lexis 136843 (E.D.N.Y. Aug. 12, 2013).
4. 2013 U.S. Dist. Lexis 79079 (D.N.H. June 5, 2013).
5. 2013 U.S. Dist. Lexis 139257 (D. Mass. Sept. 27, 2013).
6. Hamrell earned a Bachelor of Science degree in Biochemistry
and a Ph.D. in Pharmacology. Following a fellowship and other
work experience, from 1985 to 1990, he worked at the FDA as a
pharmacologist reviewer. Then he worked two years at the
National Institutes of Health on all regulatory aspects of a
research program for developing AIDS therapies. He has done
extensive consulting work including some for Abbott.
7. 2013 U.S. Dist. Lexis 137507 (S.D.Ga. Sept. 25, 2013).
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