The Daubert Challenge

Wisconsin’s adoption of the Daubert standard for expert testimony was greeted with equal measures of delight and dismay. Proponents argued it would stem a tide of “junk science” and “frivolous lawsuits”. Opponents, including the majority of attorneys and judges, felt it would add a potentially cumbersome and expensive step to litigation, despite the absence of any evidence that Wisconsin courts were struggling with suspect expert testimony.

Based on a highly unscientific survey it seems clear that Daubert has not proven to be the game changer either side envisioned. There are likely a number of reasons for this.

Wisconsin has a long tradition of dealing with challenges to experts without recourse to the specific standards set forth in Daubert. Judges that I have spoken with felt that they had inherent authority to weed out suspect testimony with or without 907.02, which incorporates Daubert.

Daubert was spawned in the federal court system in the context of cases which turned upon highly technical scientific testimony. Cases of that sort are less common in our state courts. The majority of expert opinion testimony in our cases involves either medical testimony or testimony on subjects which are familiar to many judges.

In a small number of Wisconsin cases an effort has been made to challenge expert medical testimony by treating physicians. Those challenges have not fared well in federal court and predictably have met with little, if any, success in our state courts. One Wisconsin trial court rejected a challenge to the testimony of a treating physician, commented that Daubert was not well suited to determining the admissibility of medical testimony as opposed to more arcane scientific and technical testimony.

In Cooper and Pooge v. Nelson and Company, 211 F.3d 1008 (7th Cir. 200), our Federal Circuit Court of Appeals reached the same conclusion, noting that because the Daubert factors are more appropriate to hard science methodology, they are generally inappropriate for use in assessing the reliability of expert clinical and medical testimony. The court went on to state that the diagnostic tools of examination, accompanied by physical history as related by the patient, was an acceptable methodology under Daubert.

Although the courts have generally not been receptive to challenges to the testimony of treating physicians, it is not clear that they might not be more receptive to challenges to defense medical witnesses. Those witnesses more closely resemble the sort of hired experts that the courts have sought to screen under Daubert.

A number of the factors enumerated in Daubert and its progeny would appear to provide a sound basis for a challenge for the sort of testimony frequently offered by hired gun medical experts. While many of those experts may be qualified in terms of their expertise, Daubertlooks beyond that to the manner in which opinions have been reached and the support that can be offered for those opinions. As Judge Stadtmueller of the Wisconsin Eastern District noted in Lemmerman v. Blue Cross Blue Shield of Wisconsin, 713 F.Supp.2d 791, even if a witness is supremely qualified as an expert he “cannot waltz into the court room and render opinions unless those are opinions that are based upon some recognized scientific method and are reliable”. Citing Clark v. Tekata Corp., 192 F.3d 750 (7th Cir. 1999).

The language of the court’s decision in a second Eastern case Fail-Safe, L.L.C. v. A.O. Smith Corp., 744 F.Supp.2d 870 (2010) is also interesting in light of the approach taken by many defense medical experts. In that case the court concluded that the expert’s reliability was undermined by the fact that he uniformly rejected all evidence that did not support his opinions. The court characterized the expert’s approach as an “unwarranted dismissal of the evidence or outright blindness to contrary evidence”. The court then went on to criticize and ultimately reject the opinions of a second expert because he was guilty of the same sort of “cherry-picking”. The same criticisms could be levied at many, if not most, defense medical experts.

Daubert and a number of subsequent cases, including cases in our federal courts, have enumerated factors to be evaluated in determining whether expert testimony has sufficient reliability to be admitted they include:

A. Whether an expert’s claimed field of expertise has been shown to produce reliable results and is grounded in the scientific method.

B. Whether an expert has adequately accounted for alternative explanations of the evidence.

C. Whether opinions are based on research or studies conducted for purposes other than litigation or whether the opinions have been developed solely or primarily for the purposes of testimony.

It can certainly be strongly argued that the standard opinions rendered by many defense medical experts would run afoul of the principles enunciated in Daubert and its progeny. The familiar opinion that everyone recovers from soft tissue injuries in eight to 12 weeks, or thereabouts, would seem open to challenge on several grounds.

First, the theory does not enjoy acceptance among the medical community, specifically treating physicians. Second, there is no indication that the theory or technique has been subjected to peer review and publication. Third, there is nothing that I am aware of that would indicate that the field of expertise has been shown to produce reliable results or, for that matter, is grounded in the scientific method. Fourth, and perhaps most tellingly, the opinions have been developed solely or primarily for the purposes of testimony and are not based on research or studies conducted for purposes other than litigation.

Selected Cases

Wisconsin’s appellate courts have had little opportunity to weigh in on the application of the Daubert standard in our state courts. That in itself is telling.

In a decision which has not yet been published, State of Wisconsin v. Terry L. Olson, the Wisconsin Court of Appeals considered the application of Section 907.02 to testimony by several psychologists as to whether the defendant was more likely than not to commit another act of sexual violence in the future.

The Court of Appeals concluded that Section 907.02 “does not require that expert testimony be allowed only if verified by published, peer reviewed articles. The fact that Dr. Doren’s extrapolation method is debated in psychological circles does not render it inadmissible ‘junk science’”. The court went on to note that there were other bases in addition to the challenged methodology to support the expert’s testimony.

The Trial Court had rejected the testimony of a defense expert as lacking credibility. The Court of Appeals agreed, finding his testimony reflected a lack of neutrality and betokened a misunderstanding of the statutory definition of a sexually violent person. The comments all lack of neutrality are a consistent theme in opinions regarding expert testimony.

A series of decisions by Wisconsin’s Federal Eastern District Court and the Seventh Circuit Court of Appeals illustrate the potential hazards raised by Daubert challenges and highlight the importance of anticipating those challenges in both selecting experts and preparing them for deposition. They also confirm the importance of establishing ground rules in advance for when Daubert motions should be brought and how they will be addressed.

In a relatively recent case from the Eastern District, CNH Am., LLC v. Champion Envtl. Servs., Inc., 863 F. Supp. 2d 793 (E.D. Wis. 2012), Magistrate Judge William E. Callahan, Jr. concluded that striking an experts opinion as unreliable was unwarranted. The case involved a classic battle of experts over who was responsible for contamination of a portion of the plaintiff’s property. The plaintiff had hired the defendant to remove from the site all the demolished and dismantled equipment, property, materials and debris. The defendant was also to provide fill for all pits and other subsurface openings using crushed construction-grade fill concrete comprised of concrete and concrete block obtained from the project site itself.

The plaintiff alleged that the defendant had violated the contract by bringing in materials from another site which were contaminated with PCBs. The defendant insisted it had not done so and that all of the fill materials came from the plaintiff’s property and therefore any contamination was the responsibility of the plaintiff. Both parties moved for summary judgment and apparently filed contemporaneousDaubert motions attacking the other party’s expert.

The plaintiff moved to strike two key opinions by the defense expert on the key issue of where the PCBs originated. The plaintiffs first argued that the expert’s testimony relied on testimony of the defendant’s president and were thus based on non-scientific lay observation.

The court rejected the argument noting the fact that the expert relied to some extent on the defendant president’s testimony was not reason enough to strike the expert’s opinion as unreliable. The court concluded that while the opinion of an expert who merely parrots another’s views has been found to be inadmissible under Daubert, in this case the expert relied on a number of other factors as well in reaching his opinion.

The plaintiff also argued that the expert improperly relied on a discredited lab report. The court disagreed noting that the expert had used the report to rebut another expert’s opinion. The court concluded that was a “quintessential battle of the experts and CNH’s concern speak to credibility not admissibility.”

Finally, the plaintiff contended that the opinions on the origin of the contaminated fill were speculative. That was based primarily on deposition testimony in which the expert was asked whether he would be speculating about a spill that was not documented, to which the expert replied “yes”. The court felt that the totality of the expert’s testimony indicated that he had considered a number of factors and that there was sufficient basis to remove his opinions from the realm of speculation.

The court observed, “Because Prattke bases his opinions on multiple considerations, CNH’s piecemeal challenges to the reliabilities of his opinions are unsuccessful.” That sort of piecemeal challenges based on cherry-picking language from depositions have become increasingly common, and the court’s rejection of the approach in this case is worth noting.

The proponents of the experts’ testimony did not fare so well in two other decisions from the Eastern District. It is worth noting that in all three cases the courts were clear that the burden of establishing the admissibility of the experts’ testimony rested with the proponent of the testimony.

In Lemmerman v. Blue Cross Blue Shield of Wisconsin, 713 F. Supp 2d 791. Judge Stadtmueller of the Eastern District concluded that the testimony of both plaintiff’s experts should be barred based on Daubert principles, and summary judgment was therefore granted to the defendants.

The case involved injuries which the plaintiff claimed to have sustained when a mixture of a granular form of highly concentrated chlorine was combined with water. The plaintiff claimed pulmonary injuries and an anxiety reaction caused when the mixture exploded and sprayed the plaintiff with fumes and foam.

The plaintiff had two experts, one to testify with respect to the explosive propensities of the mixture and the need to provide a warning. A second expert was to testify as to the effects of the explosion on the plaintiff.

The court observed the problem was not the expert’s general qualifications, but whether those qualifications provided a foundation to opine on the relevant issues. The court cited the language from Clark v. Tekata Corp., 192 F.3d 750 (7th Cir. 1999) quoted earlier which in essence says qualifications will not be viewed in a vacuum. The question is whether the expert can testify reliably on the specific issues before the court.

What sunk this expert was the court’s view of the lack of reliable methodology underpinning the testimony. The expert had read safety data sheets and labels to reach his conclusion concerning the explosive propensities of the substance. He had done no testing on dichlor and did not cite any studies or literature supporting the notion that uncontaminated dichlor mixed with water could produce a violent reaction. The court also noted that the theory had not been subject to peer review and there was no indication that the witness’s conclusions were generally accepted in the scientific community. Finally, the court noted that the witness did not deal with the obvious alternative explanation that the substance had been contaminated prior to the explosion.

Ultimately, the court found those infirmities did not go to simply the weight of the testimony but to its reliability. The court therefore struck the expert’s testimony.

The court then turned to the pulmonologist who had opined that the plaintiff had suffered reactive airway dysfunction syndrome as a result of the explosion. The court broke that opinion down into two parts; the first being diagnoses of the ailment, and the second causation.

The court found significant flaws in the expert’s testimony with respect to diagnosis. Those included the failure of the expert to have taken into account the plaintiff’s history of pulmonary problems and the lack of evidence of immediate symptoms of the condition which he diagnosed. The expert had relied on faulty information from the plaintiff and the expert had only reviewed the most recent medical records of the plaintiff.

The expert apparently attempted to rescue the situation when confronted with evidence of prior problems by opining that the substance had caused an exacerbation of a preexisting asthma. The court rejected this opinion as “cooked up” when the doctor’s original diagnosis could not survive scrutiny.

The court was no more impressed with the doctor’s opinion on causation. It cited the Federal Judicial Center’s Reference Manuel on Scientific Evidence which set forth a basic four-step process for how an expert should make an evaluation of external causation. (1) The physician must establish the characteristics of the condition. (2) The physician must define the nature and amount of the environmental exposure. (3) The physician must demonstrate that medical and scientific literature provides evidence that the exposure can cause the outcome. (4) The expert must apply the general knowledge to the specific circumstances of the case in hand.

The court found the expert had not examined any medical literature with respect to cause and the expert had cited no data supporting the opinion. In sum, the court concluded the expert had not undertaken any effort to explain his findings regarding causation, let alone engaged in the methodology recommended in the Reference Manual on Scientific Evidence.

Having struck both experts the court granted summary judgment for the defense.

The plaintiffs fared no better in a second case before Judge Stadtmueller. Fail-Safe, L.L.C. v. A.O. Smith Corp., 744 F.Supp.2d 870 (2010). This case involved a dispute between corporations centering around a claim of unjust enrichment. The plaintiff’s damages case rested in substantial part on the testimony of two experts concerning future sales and future profits.

The defense filed motions in limine challenging the experts’ testimony on those key issues.

The plaintiff asked the court to resolve the defense challenge to the experts after hearing evidence at trial or, in the alternative, requested that the court hold an evidentiary hearing. The court stated the decision whether to conduct a hearing was discretionary. Because the court felt the experts had already been given two opportunities to clarify their opinions the court declined to postpone the determination until trial or to hold a hearing.

The court first noted that the data on which the first expert relied concerning how many units would be launched and how quickly was extremely suspect. The court said the expert failed to scrutinize assumptions about how quickly the product would grow on the market, in effect ignoring an alternative approach. The court also felt that the expert’s reliability was undermined by the fact that he uniformly rejected all evidence that did not support his opinions. The court characterized this as an “unwarranted dismissal of the evidence or outright blindness to contrary evidence.”

With respect to the second expert, the court observed that his opinion was essentially dependent on the opinion of the first expert. Once that opinion failed, the second expert’s testimony must also be viewed as unreliable. The court also found the second expert guilty of “cherry-picking”.

Comments and Suggestions

There are certainly lessons to be learned from the Federal Court experience. Hopefully they will help courts and lawyers ensure that the goals of Daubert and Section 907.02 are met.

First, make sure that you establish the ground rules with the court. Courts do not all take the same approach to Daubert either in terms of timing or the manner in which challenges are heard. Those issues ought to be addressed at the time of scheduling with particular attention to the following:

1. Establish who has the burden with respect to the motion. Based on the Federal Court experience it is wise to assume that the proponent of the expert will bear that burden. While I think Wisconsin law is less clear in that respect, it is important to know in advance who bears that burden.

2. The party challenging the expert should, at the least, be required to set forth a specific basis for that challenge as opposed to simply citing Daubert or reciting the factors set forth in Daubert.

3. Timing is, if not everything, important. Many of the challenges at the Federal Court level have been brought in conjunction with a motion for summary judgment. I believe it is better practice to resolve any Daubert motions prior to summary judgment. If those motions are heard together, the outcome of the Daubert motion often becomes dispositive on the motion for summary judgment, with no opportunity to address any shortcoming on the part of your experts.

4. Establish in advance whether the motions are going to be heard on briefs and affidavits, as is often the case, or whether the court will permit a hearing with testimony. Daubert motions are frequently resolved based on the expert’s report and depositions conducted by the defense. If the defense is challenging a plaintiff’s expert, that puts them in a position to cherry-pick the deposition with relatively little opportunity to challenge that approach. Permitting the expert to testify at the hearing, particularly if the expert makes a good witness, can be an effective anecdote to that type of attack.

In any case where a Daubert challenge seems likely, it is important to do everything you can to inoculate your experts against the challenge. Experts’ reports should be reviewed with the Daubert standards in mind. When preparing your expert for deposition, you should anticipate the possibility of a Daubert challenge and be sure that your expert has the Daubert factors and considerations in mind.

In recent years the defense has taken to challenging experts based on the fact that they did not give a specific opinion or explanation in the course of their deposition. Traditionally, most of us have felt that it was up to the defense to elicit opinions and if the defense failed to ask, it was not our job to correct their omissions. There seem to be a growing number of instances where the Defense argues that the fact that an expert did not mention a specific opinion (often because the defense did not ask) the expert should be barred from expressing that opinion.

The concern is obviously heightened with Daubert. It becomes even more important to be sure that your expert has expressed any significant opinions and the basis for those opinions. If he has not had an opportunity to do that, it is prudent to ask clarifying questions to be sure that those opinions are on the record.

Conclusion

The vast majority of cases are not going to involve a Daubert challenge. That is even more true in Wisconsin than in the federal system. I continue to believe that Wisconsin’s courts are unlikely to apply Daubert as rigorously as it has been applied in some federal courts. Wisconsin’s courts and lawyers share a mutual interest in ensuring that testimony which is reasonably reliable and likely to be helpful to jurors is not barred. Opinions which are “cooked up” without reasonable scientific support should be subject to scrutiny. In the end a trial should be a search for the truth and Daubert ought to be used to promote, not obstruct that goal.

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