Recent Decision Impacts Motion Practice

A recent decision by the United States Supreme Court confirms that the trial judge has a gatekeeping role when it comes to all expert testimony and not just that concerning “scientific knowledge.”

Kumho Tire Co. v. Carmichael clarifies the Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, which had established that the trial judge has a special obligation to ensure that scientific testimony is not only relevant but reliable. Kumho makes clear that the judge must perform this gatekeeping analysis on all expert testimony, including the engineering opinion at issue in Kumho. In determining whether particular testimony is reliable, the trial court may consider the specific factors discussed in Daubert, but those factors are not a checklist.

The decision is of importance to this firm and our clients since so many of our cases turn on the testimony given by experts from all fields. Kumho makes clear that testimony from economists, engineers, vocational and other experts should be scrutinized in the same way scientific experts have been challenged in the past. The decision reaffirms the necessity of making pre-trial motions to exclude plaintiff’s testimony from a variety of experts.

A defense motion to exclude testimony can throw a monkey wrench into plaintiff’s preparation for trial since counsel must take the time to respond to the motion instead of fully concentrating on presenting the case. Depending upon the type of expert at issue and the proofs necessary to sustain a cause of action, a loss on this motion could cause plaintiff to be unable to prove the damages claimed or even an element of the cause of action itself. In either case, surviving this type of pre-trial motion is crucial to the plaintiff.

This firm utilized this type of motion on the eve of a recent trial involving floor sealers. The plaintiff, a contractor who installs wood flooring in new homes, had hired an expert to assess damages including lost business profits and loss of reputation. We felt that plaintiff’s expert economist had used unrelated and unreliable data from another company to make his calculations and reach his conclusions. We filed a motion on behalf of defendant attacking the expert’s foundation and seeking to exclude his testimony from trial. We argued under Daubert that since the underlying data was not reliable, the economist’s opinion was not reliable and therefore not relevant to the issue of damages in this case.

The trial judge reserved his decision on the motion until plaintiff could respond with a brief and permitted the case to start. Plaintiff was put in the awkward position of opening to the jury without knowing if his key witness on damages would be allowed to testify. We will never know if the judge would have granted our motion because the case settled after we made our opening statement to the jury. Plaintiff suddenly and dramatically reduced its demand.

Of course, eleventh hour motion practice concerning experts can also be used by plaintiffs to attack the proposed experts of defendants. Therefore, this office is careful to use experts whose reports and methodologies will not leave room for such an attack. Given the recent decision in Kumho, we must now be sure that all experts pass this internal test, not just our “scientific” experts.

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