State Supreme Court Applies Net Opinion Rule

When you are a parent, you are often tempted to answer the question "why?" with "because I say so." Experts shouldn't get away with that in court.

The New Jersey Supreme Court recently addressed the scope of the so-called “Net Opinion Rule,” which precludes expert testimony that does not have a sufficient basis. See Townsend v. Pierre, 221 N.J. 36, 110 A.3d 52 (March 12, 2015).  The case involved a motorcycle vs. auto collision, so let's get right to the analysis.

When a New Jersey court determines the admissibility of expert testimony, N.J.R.E. 702 and N.J.R.E. 703 frame its analysis. N.J.R.E. 702 imposes three core requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.  Creanga v. Jardal, 185 N.J. 345, 886 A.2d 633 (2005) (quoting Kemp ex rel. Wright v. State, 174 N.J. 412, 424, 809 A.2d 77 (2002)).

N.J.R.E. 703 addresses the foundation for expert testimony. It mandates that expert opinion be grounded in facts or data derived from (1) the expert’s personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts. State v. Townsend, 186 N.J. 473, 494, 897 A.2d 316 (2006).  The net opinion rule is a corollary of  N.J.R.E. 703, which forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data. The rule requires that an expert give the why and wherefore that supports the opinion, rather than a mere conclusion.  Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144, 77 A.3d 1161 (2013) (quoting Pomerantz Paper Corp., supra, 207 N.J. at 372, 25 A.3d 221).

The net opinion rule, said the court, is not a standard of perfection. The rule does not mandate that an expert organize or support an opinion in a particular manner that opposing counsel deems preferable. An expert’s proposed testimony should not be excluded merely because it fails to account for some particular condition or fact which the adversary considers relevant. Creanga, supra, 185 N.J. at 360, 886 A.2d 633 (quoting State v. Freeman, 223 N.J.Super. 92, 116, 538 A.2d 371 (App.Div.1988), certif. denied, 114 N.J. 525, 555 A.2d 637 (1989)). The expert’s failure to give weight to a factor thought important by an adverse party does not reduce his testimony to an inadmissible net opinion if he otherwise offers sufficient reasons which logically support his opinion. Rosenberg v. Tavorath, 352 N.J.Super. 385, 402, 800 A.2d 216 (App.Div.2002). Such omissions may be a proper subject of exploration and cross-examination at a trial. Rubanick v. Witco Chem. Corp., 242 N.J.Super. 36, 55, 576 A.2d 4 (App.Div.1990), modified on other grounds, 125 N.J. 421, 593 A.2d 733 (1991).

The net opinion rule, however, mandates that experts be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable. An expert’s conclusion must be excluded if it is based merely on unfounded speculation and unquantified possibilities.  So, when an expert speculates, he ceases to be an aid to the trier of fact and becomes nothing more than an additional juror. By definition, unsubstantiated expert testimony cannot provide to the factfinder the benefit that N.J.R.E. 702 envisions: a qualified specialist’s reliable analysis of an issue “beyond the ken of the average juror.” Given the weight that a jury may accord to expert testimony, a trial court must ensure that an expert is not permitted to express speculative opinions or personal views that are unfounded in the record. 
And a party’s burden of proof on an element of a claim may not be satisfied by an expert opinion that is unsupported by the factual record or by an expert’s speculation that contradicts that record.

Here, the accident occurred when defendant turned left at an intersection controlled by a stop sign. The plaintiffs argued that the proximate cause of the accident was negligently maintained overgrown shrubbery, which blocked the view of oncoming traffic.  Their expert was well qualified in engineering, and could have opined as to the design of the intersection. But, said the court, with respect to the issue of causation, the opinion diverged from the only record evidence. He did not apply his engineering expertise to present empirical evidence undermining the undisputed and corroborated testimony that when the driver turned left, her view of traffic was unimpeded. He took no measurements to demonstrate the line of vision of a driver located at the point at which she recalled making her left turn. Instead, the expert analyzed the impact of the shrubbery on the line of vision of a driver stopped behind the stop sign, explaining that placement of a stop sign and negligent property maintenance proximately caused the accident. In an attempt to reconcile his opinion with the testimony, the expert simply reconstituted the facts. He asserted that the driver's testimony about her accident was simply wrong. In this crucial respect, the expert's proposed expert testimony was indeed an inadmissible net opinion.

 

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.

 

Each and Every Exposure Opinion Rejected

A federal court recently excluded the specific causation opinions of a plaintiff's expert who asserted the defendant was liable in an asbestos case under a version of the “each and every exposure” theory. See Comardelle v. Pennsylvania General Ins. Co., No. 13-6555 (E.D. La., 1/05/15).

Plaintiffs alleged that decedent was exposed to asbestos and asbestos-containing products manufactured, distributed, and sold by defendants during the course of his employment from 1963 through 1979.  As a result of these exposures, the decedent allegedly contracted mesothelioma, which was first diagnosed in approximately September, 2013.

Among a myriad of other claims, plaintiffs alleged that he was exposed to asbestos-containing coatings, sealants, and mastics manufactured, distributed, and sold by Amchem, including an adhesive called Benjamin Foster.  Plaintiffs proposed to call Dr. Samuel P. Hammar as an expert witness to opine that Benjamin Foster was a substantial contributing factor to the development of the mesothelioma. Amchem moved to exclude or limit this specific causation opinion. Specifically, Amchem argued that Hammar's testimony was a version of the “every exposure” theory opinion, not allowable under Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (U.S. 1993).  Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness testimony. As readers know, Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.


To qualify as an expert, the witness must have such knowledge or experience in the field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth. See United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004). Additionally, Rule 702 states that an expert may be qualified based on "knowledge, skill, experience, training, or education." Hicks, 389 F.3d at 524; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (discussing witnesses whose expertise is based purely on experience).  A district court should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a given subject. Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009).

The U.S. Supreme Court's decision in Daubert provides the basic analytical framework for determining whether expert testimony is admissible under Rule 702.  See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002). A number of nonexclusive factors may be relevant to the reliability inquiry, including: (1) whether the technique has been tested, (2) whether the technique has been subjected to peer review and publication, (3) the potential error rate, (4) the existence and maintenance of standards controlling the technique's operation, and (5) whether the technique is generally accepted in the relevant scientific community. Burleson, 393 F.3d at 584. The reliability inquiry must remain flexible, however, as "not every Daubert factor will be applicable in every situation; and a court has discretion to consider other factors it deems relevant." Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004); see Runnels v. Tex. Children's Hosp. Select Plan, 167 F. App'x 377, 381 (5th Cir. 2006). 

In a number of cases, plaintiffs and their experts have advanced the argument that every exposure to asbestos is a factor in producing their illness. See Joseph Sanders, The "Every Exposure" Cases and the Beginning of the Asbestos Endgame, 88 Tul. L. Rev. 1153, 1157 (2014). As summarized by the courts addressing the admissibility of such opinions, the "every exposure" theory "posits that any exposure to asbestos fibers whatsoever constitutes an underlying cause of injury to the individual exposed." Krik v. Crane Co., No. 10-7435, 2014 WL 7330901, at *2 (N.D. Ill. Dec. 22, 2014); see also Davidson v. Ga. Pac. LLC, No. 12-1463, 2014 WL 3510268, at *2 (W.D. La. July 14, 2014).

Dr. Hammar's proposed specific causation testimony here was an example of this "every exposure" theory. In his expert report, Dr. Hammar opined that "all asbestos fibers inhaled by an individual that reach the target organ have the potential to contribute to the development of lung cancer, mesothelioma, and other asbestos-related diseases." At his deposition, he went further and opined that "all of the exposures that that individual had who developed mesothelioma, all of those would have contributed to cause his mesothelioma." Accordingly, Dr. Hammar opined based on this "every exposure" theory that if Comardelle was exposed to asbestos released from Amchem or Benjamin Foster adhesives, those exposures would have been a substantial contributing cause of his disease.

Amchem then moved to exclude Dr. Hammar's testimony that exposure to its product was a substantial factor in causing Comardelle's mesothelioma. According to Amchem, this "every exposure" theory opinion did not pass muster under Rule 702. Amchem criticized as wholly unsupported Dr. Hammar's leap from the general causation premise that every asbestos exposure increases the risk of mesothelioma, to the specific causation opinion that Comardelle's exposure to this product necessarily caused or contributed to his mesothelioma. Amchem also faulted Dr. Hammar for failing to consider any facts or data specific to Comardelle's exposure to this particular product.

The court noted several recent "every exposure" decisions in other courts.  In Smith v. Ford Motor Co., the district court excluded Dr. Hammar's opinion that a plaintiff's exposure to brake dust caused his mesothelioma because "each and every exposure to asbestos by a human being who is later afflicted with mesothelioma, contributed to the formation of the disease." No. 08-630, 2013 WL 214378, at *1 (D. Utah Jan. 18, 2013). The Smith court held that opinion to be inadmissible and agreed with the growing number of published opinions from other courts that have reached a similar result: that the every exposure theory as offered as a basis for legal liability is inadmissible speculation that is devoid of responsible scientific support. Accord Anderson v. Ford Motor Co., 950 F. Supp. 2d 1217 (D. Utah 2013).

In Davidson v. Georgia Pacific LLC, the district court likewise rejected a causation opinion based on the "every exposure" theory, concluding that the theory is not testable and consequently cannot have an error rate, thus failing to satisfy two Daubert factors. 2014 WL 3510268, at *5. The court also faulted the expert for failing to rely on any data that would show that any particular defendant's product actually caused plaintiff to develop mesothelioma.

The court agreed with Amchem that Dr. Hammar's proposed specific causation opinions in this case were unreliable and inadmissible. Although there may be no known safe level of asbestos exposure, this does not support Dr. Hammar's leap to the conclusion that therefore every exposure a plaintiff had to asbestos must have been a substantial contributing cause of his mesothelioma. This kind of blanket specific causation opinion was not based on or tied to the specific facts and circumstances of any of Comardelle's exposures to asbestos and it ignored any differences or nuances of duration, concentration, exposure, and the properties of the fibers to which he may have been exposed.

Instead of explaining how Dr. Hammar could reliably opine that Benjamin Foster was a cause of Comardelle's mesothelioma, plaintiffs referred cursorily to a broad array of cases, studies, and regulatory materials. But none of those citations plugged the impermissible gap in Dr. Hammar's reasoning from the general causation proposition that exposure to asbestos increases the risk of mesothelioma, to the specific causation opinion that in this case Comardelle's exposure to Benjamin Foster  was a cause of his mesothelioma giving rise to liability. See, e.g., Anderson, 950 F. Supp. 2d at 1225 (excluding testimony despite plaintiff's citation to numerous scholarly articles and scientific studies because those materials were not specific to the type of exposure).

Accordingly, the court concluded that Dr. Hammar's specific causation opinions as to Benjamin Foster (and all other exposures at issue in this case), were an unreliable product of the "every exposure theory" and must be excluded.

 

Long-standing Case Arising from Hurricane Rejected

Readers know we don't have the resources here to update every case we post on, but here is an update on a case we posted about nearly six years ago.    See Henry v. St. Croix Alumina, LLC, No. 12-1844 (3rd Cir. 7/10/14)(unpublished).

The case arose out of the effects of Hurricane Georges, which hit the Virgin Islands in 1998. The plaintiffs filed suit in1999, alleging that during the storm two materials, bauxite and red mud, were distributed around the island. Bauxite is a red colored ore with the consistency of dirt or dust from which alumina is extracted and used to produce aluminum. A by-product of the alumina extraction process is a substance called red mud, which was stored in piles outside the refinery using a method known as dry-stacking.  Appellants allegedly sustained property damage and also mild illnesses/injuries as a result of contact with the red dust during and after the hurricane. Generally, Appellants experienced rashes, irritation of the eyes and skin, and itching. All but one of the seventeen Appellants had their symptoms disappear completely in the weeks and months following the hurricane.

The case had a long procedural history, with class certification, decertification, and partial certifications. Eventually the property damage claims settled, and the personal injury claims were dismissed. The dismissal of Appellants' personal injury claims was founded in large part on the court's rejection of their four proposed experts. The experts did not satisfy the requirements of Fed. R. Evid. 702 and the accompanying test enunciated in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Without any expert testimony as to the cause of Appellants' injuries, the District Court ruled that the personal injury claims could not proceed and granted summary judgment to Appellees on those counts.

Three of the experts had opined on the amount of red mud that escaped the refinery and reached Appellants. Tarr concluded that some 160,000 pounds of particulates escaped from the refinery, and experts Bock and Kleppinger each stated that red mud was a "preponderance" or large component of the red dust that contacted Appellants.  However, as the District Court noted, each of the experts relied upon unique, qualitative methodologies to reach these conclusions. The District Court properly found that none of these methods had any of the hallmarks of reliable expert testimony under Daubert. The experts did not utilize a peer-reviewed methodology, subject to any known rate of error, which is generally accepted in the scientific community, or has otherwise been utilized outside the judicial context.

Much of the remaining opinion submitted by these experts was then excluded by the District Court as it did not "fit" with the case. For instance, Kleppinger and Bock testified as to the pH and toxicity of red mud stored at the refinery. The District Court held that this did not bear on the danger posed by the material that actually came into contact with Appellants. Critically, as the Court pointed out, Appellants offered no reliable testimony as to the amount and toxicity of the red dust which came into contact with Appellants. Finally, the District Court found Dr. Brautbar's testimony inadmissible, as it relied on the excluded expert opinions to establish that Appellants had come into contact with sufficient quantities of red mud to cause their claimed symptoms.

In sum, the District Court performed an exhaustive analysis of the proposed expert testimony, and determined that it was inadmissible. The court of appeals agreed with the reasoning and conclusions of the District Court, and affirmed its evidentiary rulings.
 

State Appeals Court Rejects Expert Testimony In Toxic Tort Case

The Superior Court of Pennsylvania recently rejected the plaintiff's expert's opinion on causation, in an interesting Frye decision.  See Snizavich v. Rohm and Haas Co., No. 1383 EDA 2012, (Pa. Super. Ct. Dec. 6, 2013).

Plaintiff's decedent filed suit against Rohm and Haas in April 2009, asserting causes of action under the Wrongful Death and Survival Acts, in which she alleged that decedent’s brain cancer was caused by exposure to chemicals while working at Spring House, and that Rohm and Haas was allegedly liable.  Plaintiffs submitted an expert report, which defendant challenged in a Frye motion and then hearing.  The trial court rejected the expert opinion and then granted defendant summary judgment. Plaintiff appealed.

The trial court was especially troubled by the plaintiff's expert, Dr. Milby’s, reliance on a report from the University of Minnesota (“Minnesota Report”), finding an association between brain cancer and working at the Spring House, PA facility where thousands of chemicals had been used. The Minnesota Report was inconclusive as to both the cause of the brain cancer found in the Spring
House workers and the relationship between the chemicals and increased incidence of brain cancer. Nevertheless, as the court stated, Dr. “Milby somehow comes to the exact opposite conclusion . . . Milby, however, does not state any scientific methodology that he used nor does he call into question the [study’s] methodology that might make its findings incorrect, rather he simply stated his own opposite conclusions without any further support.”  Ultimately, the Milby expert report seemed to be little more than an unscientific lay opinion given by someone who happened to be a medical doctor. As such, Dr. Milby’s testimony would not assist the trier of fact, because it contained no evidence, causal or otherwise, linking the decedent’s brain cancer to the Spring House facility.

Under Pennsylvania law, admissible expert testimony that reflects the application of expertise requires more than simply having an expert offer a lay opinion.  Testimony does not become scientific knowledge merely because it was proffered by a scientist.  Wack v. Farmland Industries, Inc., 744 A.2d 265, 271 (Pa. Super. 1999) abrogated on other grounds by Trach v. Fellin, 817 A.2d
1102 (Pa. Super. 2003). Likewise, expert testimony must be based on more than mere personal belief, Commonwealth v. Stringer, 678 A.2d 1200, 1202 (Pa. Super. 1999), and must be supported by reference to facts, testimony or empirical data.  Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 528 (Pa. Super. 2003) (en banc).

The exercise of scientific expertise requires inclusion of scientific authority and application of the authority to the specific facts at hand. Thus, the minimal threshold that expert testimony must meet to qualify as an expert opinion rather than merely an opinion expressed by an expert, is this, observed the court: the proffered expert testimony must point to, rely on or cite some scientific authority – whether facts, empirical studies, or the expert’s own research – that the expert has applied to the facts at hand and which supports the expert’s ultimate conclusion. When an expert opinion fails to include such authority, the trial court has no choice but to conclude that the expert
opinion reflects nothing more than mere personal belief.

Here, the appellate court agreed that Dr. Milby failed to demonstrate any scientific basis, other than his own subjective beliefs, that the chemicals used at Spring House caused brain cancer. He basically reviewed plaintiff's medical records, work history, and work conditions, and then relied on the Minnesota Report.  However, the Minnesota Report was inconclusive as to the cause of the brain cancer found in the Spring House workers and the relationship between the chemicals used at Spring House and brain cancer. Although Dr. Milby references and seems to rely on the Minnesota Report, he ignored the fact that it specifically and intentionally disclaims that exact conclusion that he himself reaches.  Dr. Milby did not offer any other scientific authority that even suggested a causal relationship between possible exposure to chemicals at Spring House and brain cancer, or any reason to doubt the scientific veracity of the Minnesota Report. The Milby expert opinion was, therefore, more aptly described as scrupulously avoiding the medical literature, and based entirely on subjective assessments of both cause and effect.

Thus, the Superior Court concluded that Dr. Milby’s opinion was nothing more than lay opinion offered by an expert and therefore was inadmissible. The decision reinforces the burden facing plaintiffs in toxic tort cases to proffer expert testimony with a sufficient scientific basis, especially where there are numerous idiopathic cases, where the scientific and medical literature has not found a conclusive causal link between a given product and the alleged injury.

 

State High Court Rejects Mold Expert Opinion

Here's an interesting expert analysis that arises in the less common Frye context.  In Chesson v. Montgomery Mut. Ins. Co., No. 97 (Md., 9/24/13), the Maryland high court affirmed the exclusion of an expert's methodology for linking alleged mold exposure and the plaintiffs' illness; among other things, the approach failed to take into account the level of mold exposure plaintiffs experienced.

The case at hand originated in workers’ compensation claims filed by six employees of the Baltimore Washington Conference of the United Methodist Church. The employees claimed that they had sustained physical injury, specifically neurocognitive and musculoskeletal symptoms, as a result of exposure to mold in the Baltimore Washington Conference’s office. To prove causation, the employees proffered Dr. Ritchie Shoemaker as their expert. Montgomery Mutual, however,
sought to exclude Dr. Shoemaker under Frye (called Reed in this state), arguing that his methodology to determine causation was not generally accepted in the relevant scientific community.

After some procedural events, the lower court eventually held a Frye-Reed hearing, in which the judge considered whether the relevant scientific community generally accepted as reliable and
valid Dr. Shoemaker’s methodologies and theory that identified mold exposure as the cause
for the neurocognitive and musculoskeletal symptoms allegedly suffered by the employees.  At the hearing, Dr. Shoemaker testified that the indoor air of a water-damaged building known to contain mold caused neurocognitive and muscuoloskeletal symptoms. He based his opinion on something he called his “Repetitive Exposure Protocol,” in which he would identify the presence of mold in the building, through visual identification of mold, detecting a musty smell, or lab testing of a sample, such as a piece of drywall. The individual at issue would then be removed from the subject building and, for two weeks, receive a treatment to relieve the symptoms allegedly related to mold exposure, and then be returned to the subject building for three days, during which, he
opined, the individual would report that the symptoms had redeveloped.

The trial court allowed the testimony but the Court of Appeals held that Dr. Shoemaker’s testimony was not admissible under Frye-Reed, reasoning that his methodology was flawed and not generally accepted because it failed to account for the levels of mold exposure. The Court, moreover, concluded that based on an examination of relevant scientific journal articles that the scientific community remained uncertain as to Dr. Shoemaker’s techniques and conclusions.  The plaintiffs appealed.

The high court noted that in Maryland when an expert opinion is offered to support the existence of new or novel scientific theory or methodology, “the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.” Reed v. State, 283 Md. 374, 381, 391 A.2d 364, 368 (1978), citing Frye v. United States, 293 F. 1013, 1014 (1923). The general acceptance test imposes a significant gate-keeping role on the judge to determine whether a scientific theory or methodology should be admitted for consideration by jury.  Moreover, validity and reliability are the linchpins of  the scientific method: validity, having been defined as the extent to which something measures what it purports to measure, and reliability, characterized as the ability of a measure to produce the same result each time it is applied to the same thing.

The court stressed that on cross-examination, Dr. Shoemaker admitted that he did not test any of the buildings, either the Baltimore Washington Conference’s office or any others in which an
individual resided or worked who underwent his “Repetitive Exposure Protocol,” to determine the level of mold exposure that an individual working or residing therein would have experienced. According to Dr. Shoemaker, the mere "identification" of mold in a building, even by the presence of a musty smell alone, was sufficient to conclude that an individual residing or working in that building inhaled mold that caused neurocognitive and musculoskeletal symptoms, without any further assessment of not only the level of mold, but also what other chemicals the plaintiff may have been exposed to.

Defendants called a Dr. Cheung who testified that Dr. Shoemaker’s “Repetitive Exposure Protocol”
was not generally accepted as valid in the relevant scientific community, not only because it was experimental as well as controversial in its “second tier” of biological markers approach and use of treatment drugs in an off-label fashion, as well as in its failure to account for stress levels in individuals, but also primarily because it failed to measure the levels of mold exposures by individuals in the water-damaged buildings. Mold exposure can be low to medium to high, he testified, and should include consideration of the pathways that mold must travel to reach an individual, such as the building’s ventilation system, walls, or ceiling, as well as the pressure or air flow of the building.  Dr. Cheung also testified to a survey that he had commissioned relative to whether Dr. Shoemaker’s diagnosis was generally accepted and found it was not.  Most importantly, Dr. Cheung testified regarding the absence of any study utilizing the scientific method that confirmed the relationship of mold exposure to neurocognitive and musculoskeletal symptoms.

The court also noted that other jurisdictions have determined that Dr. Shoemaker’s theory, based on his “Repetitive Exposure Protocol,” is neither generally accepted nor reliable. See Young v. Burton, 567 F. Supp. 2d 121, 130-31 (D.D.C. 2008) (also listing Virginia, Florida, and Alabama as jurisdictions rejecting Dr. Shoemaker’s theory).

The Court of Appeals agreed with the intermediate appeals court, finding that the expert's failure to account for the level of mold exposure was a fundamental flaw in his methodology .Without an expert's admissible opinion on causation, plaintiffs were unable to prove that mold in the walls of their office building was the cause of their neurocognitive and musculoskeletal symptoms.

 

Supreme Court Denies Cert in Case Excluding Treater Opinions

Readers may recall our post about Simmons v. Novartis Pharmaceutical Corp., a case in which the Sixth Circuit affirmed the exclusion of plaintiff's expert testimony seeking to link osteonecrosis of the jaw to plaintiff's use of two cancer medications. The issue was specific causation, and the court helpfully noted that a treating physician’s testimony is subject to Daubert; that an expert's statement that he found “a very close association” between ONJ and the class of drugs is not enough; and that while a treater may be qualified to diagnose a patient, a diagnosis is merely a hypothesis, which does not by itself satisfy Daubert and Rule 702.

The Supreme Court earlier this month denied the plaintiff's cert petition. See Simmons v. Novartis Pharmaceutical Corp., U.S., No. 12-283, cert. denied 11/5/12).

Plaintiff had argued that when a case involves medication that has not been widely studied, and thus published about, a different standard should apply.  She also argued that the opinions would have been admissible under the law of Maryland which, she said, requires only that expert opinions be expressed “to within a reasonable degree of medical/dental probability.”

Novartis has had a number of victories in similar cases, challenging treating physicians who seek to offer expert causation opinions. 

State Supreme Court Affirms Exclusion of Experts' Inferential Opinions

Follow our train of thought: we have posted about the misuse of the differential diagnosis concept, as plaintiff experts morph it from an accepted tool for deciding what is wrong with a patient to a method for explaining why and how the patient suffered his injury/illness.  Now, three computer experts sought to opine that a software flaw prevented a health monitor alarm from sounding, claiming their methodology was just "like a medical differential diagnosis"!  Fortunately, the South Carolina Supreme Court rejected that attempt last week.  See Graves v. CAS Medical Systems Inc., No. 27168 (S.C., 8/29/12).

Their doctor ordered that the plaintiffs use a monitor manufactured by CAS to track their infant child's breathing and heart rates as a precaution. The monitor was designed to sound an alarm, if the subject were to experience an apneic, bradycardia, or tachycardia event. Once the breathing or heart rate returns to normal, the alarm stops. Each machine also keeps a log of any events, which is the term for when the alarm sounds, and records the pertinent data and vital signs. As an additional safety measure, CAS installed not only a back-up alarm, but also a feature that records whether the alarm sounded. This system operates primarily through an independent and separate microphone specifically designed to listen for the alarm. If it hears the alarm, it then makes a notation in the monitor's internal log. If it does not hear the alarm, then it records "Front alarm not heard," and the monitor will sound the backup alarm. A microphone listens for this back-up alarm as well and records whether it was heard. If the back-up alarm fails, all the lights on the front of the monitor flash.

Tragically, the child died from Sudden Infant Death Syndrome (SIDS), which essentially means that no attributable cause of death exists. Plaintiffs claimed the monitor's alarm never sounded that night. Additionally, they testified that all the lights on the front of the monitor were on, although they were solid and not flashing. Another family member who was asleep downstairs also allegedly could not recall hearing the alarm go off.  Plaintiffs further testified the machine was not turned off until the next day, when the monitor was removed for testing.

Plaintiffs filed a strict liability design defect claim against CAS, contending the monitor's software design caused the alarm to fail.  Their claim revolved around what is known as "spaghetti code," which is when computer code is unstructured and can result from the overuse of "goto" or "unconditional branch" statements, which causes a signal working its way through the code to jump around instead of following a linear path.  This in turn caused the signal to be pushed off course and never reach its destination.

To support this theory, the Graves designated three software experts to testify regarding the alarm's alleged failure. In arriving at their conclusions that a software defect caused the alarm to fail, none of the experts did much actual testing of the software. Instead, they used a "reasoning to the best inference" analysis, which was "similar to a differential diagnosis" in the medical field. In this case, three potential causes were identified: hardware error, complaint error, and software error. Complaint error means that the monitor was misused or the alarm did sound and the Graves failed to hear it.  All the experts were able to dismiss hardware error as a cause because the machine was tested and shown to be functioning properly. Thus, the question became whether complaint error or a software error occurred.

The experts excluded complaint error because the machine was hooked up properly, and they did not believe anyone would sleep through the alarm. In other words, because the Graves claimed the alarm did not wake them, that means it must not have gone off. After being confronted with the fact that the monitor listens for the alarm and separately records whether it was sounded, the experts opined that it must be "certain" the internal logs showing the alarm actually did sound were not reliable "in light of the undisputed testimony that the alarm did not function." That left software error as the most likely cause of the alleged failure, they opined.

Defendant moved to have all these experts excluded, arguing none of them met the reliability factors for scientific testimony set forth in State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999). CAS also moved for summary judgment, contending that without this expert testimony plaintiffs had no evidence of a design defect. The trial court agreed that their opinions were unreliable both as scientific evidence and as nonscientific evidence and thus were inadmissible. Having excluded the opinions of all the Graves' experts, the lower court granted CAS's motion for summary judgment.

The state Supreme Court noted that this was its first opportunity to assess the reliability of an opinion rendered using the "reasoning to the best inference" methodology, so looked for guidance to the analysis of the United States Court of Appeals for the Tenth Circuit, which had already done so. In Bitler v. A.O. Smith Corp., 400 F.3d 1227 (10th Cir. 2004), the court held that "[e]xperts must provide objective reasons for eliminating alternative causes" when engaging in this analysis. Id. at 1237. Furthermore, "an inference to the best explanation for the cause of an accident must eliminate other possible sources as highly improbable, and must demonstrate that the cause identified is highly probable." Id. at 1238. Although the expert need not categorically exclude all alternate causes, that does not relieve the expert of his burden to prove the alternate cause is at least highly improbable based on an objective analysis. See id. at 1237–38 & n.6. The court found this objectivity requirement consistent with the quality control element of State v. Council.

Here, there was evidence that the alarm worked properly and the plaintiffs failed to hear it. In addition to the monitor's recordation of hearing the alarm sound, the family pediatrician testified he believed plaintiffs slept through it, the court noted. The doctor was aware of just how exhausted the parents were. Although the alarm is loud, if one is tired enough, he testified that it is possible to sleep through it. His opinion was bolstered by the fact that the machine seems to have worked just as it was supposed to and recorded the breathing issues perfectly. The log also seems to show the alarm managed to stimulate the baby into breathing normally at times.

This evidence does not mean that is exactly what happened.  But there was enough that an expert needed to take it into account.. Instead, the experts simply assumed the alarm did not sound and provided no reason for discounting the evidence to the contrary other than the assertion of the persons alleging a failure. Thus, they did not objectively discount the evidence of complaint error as required. See Clark v. Takata Corp., 192 F.3d 750, 757 (7th Cir. 1999) ("Simply put, an expert does not assist the trier of fact in determining whether a product failed if he starts his analysis based upon the assumption that the product failed (the very question that he was called upon to resolve), and thus, the court's refusal to accept and give credence to [the expert's] opinion was proper.").

The trial court did not abuse its discretion in excluding the opinions, and summary judgment was warranted. 

Court of Appeals Reverses Daubert Decision

A tip of the hat to our DRI colleague Mike Weston for alerting us to an interesting 10th Circuit opinion from a couple weeks ago, Hoffman v. Ford Motor Co., 2012 WL 3518997 (10th Cir. Aug. 16, 2012).

Plaintiff was injured in a rollover car accident, and sued the car manufacturer alleging that a defect in the seat belt buckle caused it to release during the accident and allow her to be ejected from the vehicle.  In support of this theory, plaintiff presented the opinion of Dr. Good, a mechanical engineer, who theorized that the buckle most probably inertially unlatched during the accident due to an alleged design defect.  He ran a series of tests on buckles allegedly similar to the one in the accident, but ran into issues when he needed to make a comparison of the data from his lab tests to data from crash rollover tests to determine if the situation measured in the lab could actually occur in the real world.  Specifically, there was an absence of available data from relevant rollover crash tests (which present dynamic, multi-dimensional forces working on the component), and so he compared his results to data from planar crash data -- ones focused on only the horizontal plane (for example, a frontal car crash).

Ford moved to exclude the opinions as unreliable under Daubert, but the district court  (without a hearing) denied the motion, concluding Ford had failed to prove that the differences between the lab test results and the real world rollover accidents were significant.  Defendant appealed. (Note, whether she was even wearing her seat belt at all was hotly contested at trial. For purposes of the Daubert issue, the court assumed she was.) 

The court of appeals concluded that in permitting the testimony, the district court had not been "a sufficiently exacting gatekeeper; Daubert requires more precision."  Plaintiff failed to present a sufficient scientific connection between the accelerations and forces the expert found necessary to unlatch the buckles in the lab, and the acceleration and forces that would have occurred in the actual accident on the street. 

Specifically, the court of appeals held that the trial court should NOT have chastised the defendant for failing to show how the deficiency mattered, the failure to use rollover crash data. And the trial court should not have deemed it "unfair" for Ford to criticize the plaintiff because of the limited amount of rollover crash data available to the expert.  The state of the science is what it is.  And Ford did more than point out a deficiency in the method; it also explained why the deficiency rendered the testing and comparison suspect.  More importantly for our readers, "it was not Ford's burden to show Good's inertial unlatch opinion was unreliable and irrelevant.  Rather, it was plaintiff's burden to show reliability and relevancy."

It was undisputed engineering science that once a component is tested, the results must be applied to the whole vehicle setting; the lab results must be compared to data from the real world. Merely showing that similar buckles can be made to unlatch under certain lab conditions is irrelevant to whether the buckle at issue unlatched in the accident absent proof that the lab conditions were present and can be adequately and accurately related to the actual rollover-type accident.  Plaintiff's expert failed to explain adequately how the acceleration and forces present in the planar crash tests were similar enough to those present in a rollover accident. Nowhere did he show how his comparison was scientifically valid. Thus, his opinion was based on mere speculation, or on the assumption, that the levels of forces he found necessary to unlatch buckles in the lab were substantially similar to those that occurred in the subject accident.

Absent such evidence, plaintiff could not meet her burden.  Since plaintiff had a full and fair opportunity to present the case, and made no attempt to add or substitute other evidence, the court of appeals remanded with instruction for the district court to enter judgment as a matter of law for defendant.

 

 

State Supreme Court Vacates Plaintiff Verdict After Trial By Ambush

The Mississippi Supreme Court has vacated a $4.5 million verdict in favor of plaintiffs in a case against defendant Hyundai over a serious car accident. Hyundai Motor America v. Applewhite, No. 2008-CA-01101-SCT (Miss., 2/10/11).

Casino co- workers Dorothy Applewhite, Cecilia Cooper, and Anthony Stewart were traveling in Applewhite's 1993 Hyundai Excel after work.  It is unclear who was driving, but the two women were in the front seats, and Stewart was in the rear seat. A co-worker traveling ahead of them testified that he noticed the car weaving, drifting onto the shoulder, and finally swerving into the northbound lane, where it collided with another vehicle. The Excel separated into two pieces. All three passengers in the Excel died at the scene of the accident. 

Family members of the three decedents sued Hyundai. At trial, the plaintiffs undertook to prove that the Excel was not crashworthy due to alleged defects in both its design and manufacture, including the welds in the vehicle. Plaintiffs offered the testimony of several expert witnesses, including Andrew Webb, an accident reconstructionist.  Webb testified that he had used a computer program to reconstruct the accident and concluded that, had the Excel remained intact, the occupants would have experienced a change in velocity of thirty-five miles per hour. Another expert then testified that at thirty-five miles per hour, it was more likely than not that the occupants would have survived the crash.

The jury awarded the plaintiffs $4.5 million, or $1.5 million for each of three decedents, finding that the automobile at issue was defective in both its design and manufacture.

On appeal, Hyundai argued that it was entitled to a new trial because it was ambushed by changes
to Webb’s opinion. As noted, one of Webb’s main contentions was that, had the Excel remained
intact, the vehicle would have experienced a change in velocity (delta-v) of no more than thirty-five miles per hour. Hyundai deposed Webb before trial, at which time Webb gave a detailed
explanation of his calculations. Months after the deposition, Webb signed an errata sheet concerning his deposition testimony, changing four key variables that he had used to make his calculations. Most notably, Webb changed the angle of the Excel from 22 degrees to 44 degrees and increased the closing speed of the Excel from 68 miles per hour to 78 miles per hour. Despite these dramatic changes, Webb did not alter his ultimate conclusion that the car would have sustained a delta-v of only thirty-five miles per hour had it remained intact.

At trial, Webb testified about the errata sheet, claiming that he had to change several variables because he realized after he had been deposed that he had made some mistakes in his initial analysis. It is undisputed that Webb’s errata sheet was not done to correct errors made by the court reporter or to clarify his testimony. On the sheet itself, Webb listed the reason for the changes simply as “range not asked.”

Hyundai moved to strike Webb’s testimony at trial, alleging that it had never received the errata sheet during discovery and that these changes were a surprise. In response, the plaintiffs argued that the changes were not material because they did not alter Webb’s ultimate conclusion. The plaintiffs also produced a letter trying to demonstrate that they had forwarded Webb’s errata sheet to the defendant. The trial court heard extensive arguments on the issue and denied the defendant’s motion.

The Supreme Court did not agree.  The discovery rules impose a duty on the parties to amend a prior response when the party knows that the response, though correct when made, is no longer
true and the circumstances are such that a failure to amend the response is in substance a
knowing concealment. The failure seasonably to supplement or amend a response is a discovery violation that may warrant sanctions, including exclusion of evidence. Whether the plaintiffs did or did not send the errata sheet was unnecessary and irrelevant to a proper analysis. Even if Hyundai did receive the errata sheet, simply giving the defendant this document did not relieve the plaintiffs of their duties under the rules. The purpose of an errata sheet is to correct scrivener’s errors or provide minor clarification; it is not a means of making material, substantive changes to a witness’s testimony. See e.g., Garcia v. Pueblo Country Club, 399 F.3d 1233, 1242 n.5 (10th Cir. 2002) (“A deposition is not a take home examination.”) If a witness changes his testimony in a manner that conflicts with prior discovery responses, the sponsoring party has a duty under the rules (Rule 26(f) in this state) seasonably and formally to amend or supplement the response -- not try to sneak it through in an errata sheet. This the responsibility of the party sponsoring the witness, not the responsibility of the witness.

The plaintiffs argued that Webb’s changes were not material because they did not alter his opinion that, had the car not separated, the occupants would have experienced a delta-v of only thirty-five miles per hour. The Court did not agree. The changes in Webb’s calculations were material changes because they were essential components of the basis for his opinion. When Hyundai attempted to cross-examine Webb about his calculations, Webb referred to his errata sheet at least seven times to demonstrate that he had corrected his mistakes. It is clear from Webb’s own trial testimony that the figures on the errata sheet were important to his calculations. Moreover, when Hyundai’s experts performed crash testing, they relied on and used the figures given by Webb in his deposition in an attempt to test his opinions and refute his testimony. When Webb changed his calculations, the entire crash test using Webb’s initial calculations lost much of its relevance.  

The Court found that the trial judge abused his discretion by not enforcing the rules, noting "we do
not condone trial by ambush." Hyundai was entitled to full and complete disclosure of the plaintiffs’ expert testimony, and neither these plaintiffs nor any other party litigant may rely on a witness’s notations on a deposition errata sheet as a substitute for formal and timely supplementation. 

Seventh Circuit Affirms Exclusion of Plaintiff Expert in Device Case

Just about a year ago, we posted about an interesting device case in which the U.S. District Court for the Central District of Illinois, in an opinion by Chief Judge Michael P. McCuskey, found inadmissible plaintiff's expert witness testimony that his knee implant failed due to alleged oxidation caused by the method Zimmer used to sterilize the product. Fuesting v. Zimmer Inc., 2009 WL 174163 (C.D. Ill., 1/26/09).

Last week  the federal appeals court affirmed the judgment for the knee implant maker.  Fuesting v. Zimmer Inc., 2010 WL 271728 (7th Cir. 1/25/10).  Fuesting had alleged he received the Zimmer-made implant in 1994. In 2001, he began experiencing pain in the knee, and his doctor removed the prosthesis in November of that year. Fuesting sued, alleging that Zimmer's sterilization of the prosthesis by gamma irradiation in air (GIA) rendered it defective. At trial, his expert witness, Dr. Pugh, testified that GIA caused the prosthesis to oxidize and delaminate, resulting in premature failure. A jury returned a verdict for plaintiff, but the Seventh Circuit vacated the judgment after finding that Pugh's testimony did not meet the requirements for admissibility of expert testimony under Fed. R. Evid. 702 and the standards set forth in Daubert.

On remand, Fuesting proffered the testimony of a second expert witness, Dr. Rose. But the trial court found that Dr. Rose had not bridged the analytical gap between accepted principles and his complex conclusions. He had not, and could not, show that the prosthesis failed because of the sterilization method used. The expert testimony as to defect also failed.

On appeal, the Seventh Circuit stated that Dr. Rose's testimony did not show that his theory that these knee implants oxidize “in vivo” had sufficient acceptance in the scientific community.  He failed to point to any peer reviewed studies that discuss the oxidation rates of this type of implant in vivo.  Dr. Rose failed to cite any articles or studies that he or any one else conducted regarding how one can discern whether the alleged oxidation occurred before or after implantation.  Dr. Rose also did not rule out possible alternative methods of causation.  Nor did he explain how the device's oxidation caused the device to fail, as the mere presence of oxidation does not prove that the oxidation caused the device to malfunction.

Dr. Rose also failed to “bridge the analytical gap” between the accepted fact that GIA sterilization causes at least some amount of oxidation and his ultimate conclusion that Fuesting's knee implant in particular failed because GIA, rather than another sterilization method, was used. Last, Dr. Rose failed to show that better sterilization alternatives existed in 1991. He concluded, in one sentence of his report, and without any support, that the industry standard was to sterilize implants in an inert gas instead of air. In fact, no manufacturer at that time employed any of  the proffered methods, and Dr. Rose cited no contemporary articles counseling the use of such methods.  For all these reasons, the district court did not abuse its discretion in excluding Dr. Rose's testimony.