Expert Engineering Testimony Improperly Admitted

A case from last week reminds us of the importance of appellate review of expert witness admissibility decisions, and the potential impact of junk science on a jury. See Hyundai Motor Co. v. Duncan, No. 140216 (Va. 1/8/15).

Defendant appealed from a judgment entered on a jury verdict in favor of plaintiffs, and argued that the trial court erred in admitting the opinion testimony of the plaintiffs' designated expert witness. The expert testified that the location of the side airbag sensor in the 2008 Hyundai Tiburon being driven by plaintiff in a single-vehicle accident rendered the Tiburon unreasonably dangerous. The state supreme court agreed and reversed the judgment of the circuit court.

Plaintiffs alleged a design defect. and to support their claim, they designated one Geoffrey Mahon, a mechanical engineer, as an expert in airbag design. Mahon expressed the opinion (just a few details) that if the defendant had located the sensor for the side airbag system on the B-pillar of the vehicle (the pillar where the front door closes), approximately 4 to 6 inches from the floor, instead of on the cross-member underneath the driver's seat, the side airbag would have deployed in this accident. Therefore, according to Mahon, the location of the side airbag sensor on the cross-member allegedly rendered the 2008 Tiburon unreasonably dangerous,

Prior to trial, Hyundai moved to exclude Mahon's opinions as having an insufficient foundation because the witness did not conduct any analysis to determine whether the side airbag truly would have deployed if the sensor had been located where Mahon proposed. When deposed, Mahon had testified that in reaching his opinion, he relied upon a computer-aided engineering study conducted by Hyundai which had analyzed 14 potential locations for the side airbag sensor, but he did not adopt any of the 14 locations analyzed by Hyundai for his placement of the side airbag sensor. He admitted he would have to run more tests to verify his location.  And while Mahon believed the best location for the sensor was at the B-pillar, he testified he did no such testing of his own to determine if the side airbag would have actually deployed in the accident had the sensor been placed at any other location. He was nonetheless permitted to express his opinions at trial, over Hyundai's objections.

The court noted that Mahon's initial impression of the airbag system was that “the airbag should have gone off,” but upon further investigation, he concluded that the system was acting as designed -- a design he said was defective. At trial, Mahon agreed that the 2008 Tiburon, with the existing side airbag system, complied with the federal regulatory standard specifically related to side impact protection. He further acknowledged that the 2008 Tiburon “did reasonably well” when Hyundai conducted 22 crash tests in which it ran the vehicle into different types of barriers, at different speeds and angles. As noted, in Mahon's view, the 2008 Tiburon was nevertheless defectively designed and unreasonably dangerous because the sensor for the side airbag system was not located on the B-pillar. 

Consistent with his deposition testimony, Mahon testified at trial that he did not perform an analysis to determine whether the side airbag in the vehicle would actually have deployed if the sensor was in a different location. Mahon conceded that he had no real data demonstrating the real-world performance of a sensor located on the B-pillar that certain distance from the floor. He further agreed that because the airbag system must work quickly, that is the sensor system must decide within 15 milliseconds of a crash event whether an airbag is required and then inflate the airbag in 15 to 50 milliseconds, the location of the sensor is important to the overall crash sensing system such that inches, and even increments smaller than inches, really matter in the determination of the location of the sensor.

The state Supreme Court noted that expert opinion must be premised upon assumptions that have a sufficient factual basis and take into account all relevant variables. Expert testimony founded upon assumptions that have no basis in fact is not merely subject to refutation by cross-examination or by counter-experts; it is inadmissible. Failure of the trial court to strike such testimony upon a motion timely made is error subject to reversal on appeal. Furthermore, expert testimony is inadmissible if the expert fails to consider all the variables that bear upon the inferences to be deduced from the facts observed. See CNH America LLC v. Smith, 281 Va. 60, 67, 704 S.E.2d 372, 375 (2011).

In short, concluded the court, Mahon's opinion that the 2008 Tiburon was unreasonably dangerous was without sufficient evidentiary support because it was premised upon his mere assumption that the side airbag would have deployed here if the sensor was at his proposed location—an assumption that clearly lacked a sufficient factual basis and disregarded the variables he himself acknowledged as bearing upon the sensor location determination. Although experts may extrapolate opinions from existing data, a trial court should not admit expert opinion which is connected to existing data only by the ipse dixit of the expert. General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (decided under the version of Fed.R.Evid. 702 which the General Assembly adopted, verbatim, in current Va. Code § 8.01–401.3(A)). The expert's opinion that the vehicle was unreasonably dangerous was based on his ipse dixit assumption that the side airbag would have deployed in the crash if the sensor had been located on the B-pillar. But the “analytical gap” between the data Mahon relied upon from Hyundai's location study and the opinion he proffered at trail was simply too great. Therefore, Mahon's opinion was inadmissible, and the trial court abused its discretion in admitting it.

The plaintiffs relied upon Mahon's opinion that the 2008 Tiburon was unreasonably dangerous to satisfy their burden of proving that Hyundai breached its implied warranty of merchantability. Because Mahon's opinion supplied the only support for the claim that the vehicle was unreasonably dangerous, the inadmissibility of Mahon's opinion was as a matter of law fatal to the claim and entitled Hyundai to judgment as a matter of law.


Florida Adopts Daubert Test

Last month, Florida Gov. Rick Scott (R) signed into law legislation (H.B. 7015) concerning the qualifications of expert witnesses and replacing the the state admissibility standard under Frye to the Daubert standard. The law kicks in this month.

Currently, Florida courts employ the standard articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and progeny, to determine whether to admit expert testimony. Under the Frye standard, the methodology or principle on which expert opinion testimony is based must be generally accepted in the field in which it belongs.  The bill replaces the Frye standard with the Daubert standard. Under the Daubert test, when there is a proffer of expert testimony, the trial judge as a gatekeeper must make a preliminary assessment of whether the reasoning or methodology properly can be applied to the underlying facts at issue. The bill adopts the Daubert standard by amending Florida law to prohibit an expert witness from testifying in the form of an opinion or otherwise, including pure opinion testimony, unless:

The testimony is based on sufficient facts or data;
The testimony is the product of reliable principles and methods; and
The witness has applied the principles and methods reliably to the facts of the case.

Additionally, the preamble further states that the Legislature intended to adopt the standards provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and to prohibit pure opinion testimony as provided in Marsh v. Valyou, 997 So. 2d 543 (Fla. 2007).

The vote in the Senate was 30-9; in the state House 70-41.  Florida business groups supported the change as one making the state's legal climate more friendly to businesses by helping to keep junk science out of the court room.

Supreme Court Hears Arguments in Comcast

We alerted readers before about the Supreme Court consideration of the role of Daubert at the class certification stage.   See Comcast Corp. v. Behrend, U.S., No. 11-864 (cert. granted 6/25/12). The Court had indicated it was interested in the question "whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a classwide basis." Readers will recall that in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011) the Supreme Court in dicta referenced the question. Justice Scalia observed that the district court had "concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings," but the majority replied that "we doubt that is so." 131 S. Ct. at 2554. Thus, Dukes strongly suggested that it was appropriate for defendants to make the expert challenge at the class certification stage, and important for the court to resolve the issue then.

The justices heard arguments from both sides November 5th.  The district court in Comcast originally certified a class; following the court of appeals' decision in Hydrogen Peroxide, 552 F.3d 305, the district court granted in part Comcast‘s motion to reconsider its certification decision. After further briefing, plaintiffs got the case re-certified after convincing the district court that they could show that they had an expert methodology to prove damages on a classwide basis. On the current appeal, the Third Circuit agreed that the lower court had applied the "rigorous analysis," adding that at the class certification stage, "we are precluded from addressing any merits inquiry unnecessary to making a Rule 23 determination.” The Petitioners argued that the Third Circuit affirmed the certification order after expressly declining to consider several “merits” issues necessary to determine whether, as required by Rule 23(b)(3), common questions predominate over individual ones. The focus on damages, which some have viewed as narrowing the issue presented, still is a question that arises not just in antitrust cases, but also in mass torts, which are front and center for our readers.

Plaintiffs seemed to get more questions from the bench than did defendant, especially about any problem with allowing potentially inadmissible evidence to form the basis for the crucial class certification decision. 

Comcast emphasized flaws in the expert's damages model, including that the damage model was not linked to the class theory certified by the lower court, that the alleged monopolization of the Philadelphia area through clustering deterred competitors, or “overbuilders,” from competing. The district court should not have relied on it to certify the class. Plaintiffs argued waiver, that the company failed to bring up Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 469 (1993), until it was too late. That focus led Justice Kagan to note, “I am still in search of a legal question that anybody disagrees about here.” Justice Elena Kagan observed it seemed the parties apparently agreed that if the Daubert question was not waived, the lower court should have held a hearing on the admissibility of the expert opinions. Comcast emphasized it had argued to the trial court that this model did not work, ought to be precluded, and was not a valid methodology.

Plaintiffs argued that allowing district courts to defer admissibility determinations under Daubert  until after the class certification stage is consistent with the broad discretion given judges on evidentiary issues.  But that failed to address the pressure that class certification puts on defendants to settle, a point that was not a focus of the arguments. Plaintiffs also seemed to be arguing for a standard in which the district court has to decide simply that it is more likely than not that the damages model/expert opinion will be admissible at trial, and will meet the standard that’s required to get to a verdict.  But Justice Sotomayor asked "can a district court ever say that it’s persuaded by unreliable or not probative evidence.” Justice Alito similarly asked how could this expert "report be probative if it did not satisfy Daubert?”

Comcast argued that the trial court needed to conduct more than a limited Daubert hearing, agreeing with what defendant called the holding of the Seventh Circuit in American Honda that the question at the class cert hearing is not solely one of whether the evidence would be admissible, but also  -- keeping in mind that the focus of the class certification hearing is to decide whether the case should be tried as a class --  whether it is a methodology that sufficiently fits the facts and is reliably based on a scientific method so that plaintiffs will be capable of proving, class-wide, this issue at trial.

Justice Scalia asked about a hybrid approach where the court would focus at the class stage on reliability, and leave other Daubert inquiries (like fit)  for trial. But a focus of Justice Ginsburg's questions right out of the box was whether any finding of reliability was necessary on damages. She noted that in discrimination law contexts, courts may, if the liability questions can be adjudicated on a class basis, have the damages question adjudicated individually.  Of course, that view of class actions seems to slight the manageability requirement in a (b)(3) context, and invites truncated procedures that violate a defendant's due process rights.

One to watch for sure.