This week, the United States Court of Appeals for the Eleventh Circuit issued two decisions reinforcing the high standard for admitting expert testimony in federal court.
In Chapman v. Proctor & Gamble Distributing, LLC, Case No. 12-14502 (decided September 11, 2014), the Court affirmed the grant of summary judgment to the manufacturer of a denture adhesive in a products liability case. The plaintiff claimed that she suffered from a neurological condition allegedly resulting from the presence of zinc in the denture adhesive she had used for eight years. The plaintiff offered four experts to testify about the causal link between the denture adhesive and her neurological condition. The district court excluded all of the experts, and the Eleventh Circuit affirmed. The Court noted that the standards for expert testimony recognized two types of toxic substances: those that the medical community generally recognized as toxic (such as asbestos or cigarette smoke) and others where there is no such general recognition in the medical community. The Court held that the zinc compound at issue fell into the second category. Because it was in that second category, the plaintiff was required to provide expert testimony to establish that the substance could have caused her condition harm and that it did cause her specific injury. Although the Court did not question the credentials of the experts, the Court found their methodologies to be unreliable. On general causation, the Court particularly noted the lack of epidemiological evidence to support the claim of general causation. On the issue of specific causation, the Court found that the experts had not employed a methodology that adequately excluded other possible causes of the plaintiff’s condition.
In Hughes v. Kia Motors Corp., Case No. 13-10922 (decided September 12, 2014) the Court affirmed the exclusion of an expert in a motor vehicle product liability case. In that case, the driver of a car died of a traumatic brain injury after her car was struck by a truck and then collided with two parked cars and several other objects before coming to a rest. The plaintiff had hired a medical expert who testified that the deceased could have sustained her brain injury in the first impact and that her injury was exacerbated by the subsequent impacts or she could have sustained the fatal brain injury in the subsequent impacts. Opinion, p. 10. The District Court excluded the expert’s testimony, and the Court of Appeals affirmed. The Court ruled that the expert had failed to offer an adequate explanation of his scientific methodology and had failed to express an opinion about how each of the various impacts would have affected the deceased. Opinion, p. 27.
Decisions such as Chapman and Hughes illustrate the difficulties in using expert testimony in federal court. The problem typically is not one of credentials. It is the methodology employed by the expert in reaching his conclusion. An adverse party will put that methodology under a microscope, inviting a court to find that the methodology is inadequately explained or insufficiently rigorous. A party needs to candidly anticipate potential grounds to challenge the testimony of his or her expert.
The Chapman and Hughes opinions are available at http://media.ca11.uscourts.gov/opinions/pub/files/201214502.pdf and http://media.ca11.uscourts.gov/opinions/pub/files/201310922.pdf
For more information on expert testimony, contact your Appellate Counsel at Smith, Gambrell & Russell.