Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
In Kumho, the Supreme Court ex- tended the Daubert analysis to include non-scientific testing by experts who rely on skill or experience. After Kumho, tech- nical expert evidence is governed by FRE 702 and Daubert, as well. Now it is gen- erally accepted that Daubert applies to all expert testimony and evidence.
Weisgram & Marley Co., 528 U.S. 440 (2000)
InWeisgram, the evidence offered by plaintiff on the cause of a fire was admit- ted and a verdict for the plaintiff was obtained. On appeal, the defendant chal- lenged the evidence under Daubert theories and the 11th
Circuit Court of
Appeals reversed, finding that the evi- dence should not have been admitted. The Supreme Court affirmed. The plain- tiff did not get a re-trial and the court concluded that the remaining competent evidence was insufficient, so the case was over.
There is a widespread misperception
that Daubert challenges are the exclusive tool of the defense and represent a sig- nificant obstacle for plaintiffs’ cases, particularly where scientific evidence is an integral part of the case. The following strategies can be utilized to either avoid the pitfalls of a Daubert challenge, or more importantly, to turn the tables on the de- fense and use Daubert against them.
Avoiding or Winning a Daubert Challenge
A. Case Evaluation It is essential that prior to accepting a case (other than routine automobile, slip & fall, etc.), the practitioner seriously and objectively look at the case and where it will be tried.
When a potential client
comes in with a case that involves unusual or heretofore unseen causation, for ex- ample, cell phone/brain tumor, one is cautioned to think twice before accept- ing the case. A review of the court’s opinion in Newman v. Motorola, Inc., CCB-00-2609, U.S. Dist. Ct. for the Dist. of Md.3
, will illustrate the time and
expense involved in a serious Daubert challenge. After a week long Daubert mini-trial, the trial judge concluded that plaintiff ’s expert testimony was insuffi- cient.
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Trial Reporter 5
B. Avoid Federal Court. Although Daubert-like challenges ex-
ist in Maryland under state court rules, you are more likely to get and to lose a Daubert challenge in Federal Court. If you are contemplating a case that has se- rious scientific or technical issues, (e.g. mold exposure, drug product liability, chemical exposure), it is imperative that you explore legitimate ways to avoid di- versity of citizenship, the inevitable Removal Petition, and the Daubert chal- lenge that is sure to follow. Identifying a legitimate, non-diverse defendant prior to filing in state court can help avoid the spectre of Daubert.
C. Recognize that Maryland employs a somewhat Daubert-like analysis. There are two cases in Maryland, that combined, have the practical effect of Daubert and demonstrate a clear trend towards a Daubert type of analysis. Read- ing Wilson v. State, 370 Md. 91 (2002) and Carter v. Shoppers Food Warehouse Md. Corp., 126 Md. 147 (1999) can only lead to the conclusion that a Daubert-like chal- lenge is available in Maryland state courts. Moreover, the Maryland Rules of Evi- dence are patterned after the FRE, and Rule 5-702 is essentially the same as FRE 702. Although Frye survives the adop- tion of Rule 5-702, there is clearly an opening for a Daubert of type challenge and a tendency by the appellate courts to be receptive to such an argument.
D. Challenges available to Plaintiffs. The following are areas of testimony typically encountered by plaintiffs where a Daubert challenge would be available, whether in state or Federal Court. One regularly encountered is the phy-
sician hired by the defense who gives opinions based on a records review only, or a cursory exam followed by bald con- clusions. A viable challenge can be mounted against these opinions. Using the Daubert analysis, the following ques- tions can be raised as to the physician’s opinions: 1. Can the theory or technique be tested? (Of course not. There was no exam, no test results, nothing.)
2. Peer review (none). It is doubtful that one can find a peer reviewed article advancing the proposition that forming medical opinions is appropriate without an accompa- nying physical exam.
3. General accuracy of theory or tech- nique? Again, none. Using the analysis of the court in Carter, su- pra, how can a physician be expected to diagnose a patient’s problem and its cause without a physical exam.4
(Continued on page 6) 4
One might inquire, “Doctor, is it your prac- tice to diagnose and treat your private pa- tients without seeing and examining them?”
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