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Daubert and the "Weight of Evidence Approach"

In its recently issued decision in Milward v. Acuity Specialty Products Group, Inc., 2011 WL 982385 (1st Cir. 2011), the First Circuit Court of Appeals appears to have constrained the judicial gate-keeping role in determining the admissibility of expert opinions to some degree. The defendant in the Milward case challenged the plaintiff’s expert opinion on whether exposure to a particular chemical could have caused the plaintiff’s rare form of leukemia. The District Court excluded the opinion, finding that the expert’s opinion lacked sufficient scientific reliability to warrant admission. The expert opinion at issue was based upon a “weight of the evidence” approach which relies heavily upon judgment. There was no scientific consensus behind the expert’s conclusions and the defendant argued that the opinion was unreliable based upon the considerations set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The First Circuit ruled that the District Court erred in excluding the evidence based upon its evaluation of the evidence on which the expert based his opinions and in considering the weight of such evidence. It noted that the District Court went too far in relying upon the lack of general consensus within the scientific community in excluding the expert’s opinions. The First Circuit stated that there is an important difference between what is unreliable support for a conclusion and what a jury may conclude is insufficient support for an expert’s conclusion. It further noted that the soundness of the factual underpinnings of an expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual matters that are within the province of the jury, not the court, and go the weight of the evidence rather than its admissibility. The First Circuit stressed; however, that issues involving the admissibility of expert testimony are tied to the particular facts before the court and require a case by case analysis.

The admission of expert testimony has long been within the discretion of the trial court under the standards set forth in Daubert, which Massachusetts Courts adopted in Commonwealth v. Lanigan, 419 Mass. 15 (1994). The admissibility of expert testimony is typically predicated upon a review of whether the theory or technique has been tested, whether it has been subject to review and publication, consideration of the technique’s known or potential rate of error, and the level of the theory or technique’s acceptance within the relevant scientific community. Daubert, 509 U.S at 593-94. Traditionally, the trial judge has had wide discretion in considering the admissibility of proffered expert testimony. The Milward decision appears to provide some ammunition for arguments that the trial judge should err on the side of permitting a jury to determine whether an opinion is scientifically supported rather than making this decision as a part of the court’s gate-keeper role.

From a defense perspective, Daubert/Lanigan motions can serve an important role in keeping a plaintiff from offering an opinion that while plausible to an average juror, lacks scientific support or is contrary to generally accepted scientific principles. While it is unclear what role the Milward decision will play in cases pending in state courts, it is clear that Daubert/Lanigan motions will remain a useful avenue for challenging expert opinions in appropriate circumstances. The Milward case involved a very rare disease around which there was little direct research and firm conclusions. Therefore, the expert could rely more upon his own judgment and conclusions since he was not boxed in by countervailing opinions. Although Daubert/Lanigan motions are not appropriate when there is simply a disagreement with an expert’s opinions, there are many types of cases where abundant research, guidelines and peer reviewed literature directly contradict a purported expert opinion and the expert’s opinion is truly only his own. In Milward, the court expressly noted that trial judges may evaluate data proffered in support of an expert’s opinions to determine if the data provides adequate support to conclude that the expert’s testimony is reliable. The Massachusetts Court of Appeals recently upheld the exclusion of an expert’s opinion where the trial judge determined that the publication the expert relied upon was statistically flawed and rejected by other publications. Broumand v. Oly Realty Two, LLC, 79 Mass. App. Ct. 1106 (2011). Although not limitless, trial judges retain discretion in determining what evidence is worthy of going to a jury. Where proposed expert testimony appears to come entirely out of left field or is based upon flawed assumptions, it should be challenged with a well-supported Daubert/Lanigan motion that points out the lack of support for the proffered testimony and, where possible, cites to the wealth and depth of contrary opinions. Massachusetts courts will not review the appropriateness of an expert’s testimony in retrospect where there was no request that the trial court invoke its gate-keeper role. Commonwealth v. Barbosa, 457 Mass. 773 (2010). Therefore, once the testimony is out before the jury, it will be difficult if not impossible to argue that it was error to admit the testimony. Since exclusion of an expert’s testimony may preclude a party from going forward with the case, it remains well worth considering filing a Daubert/Lanigan motion in appropriate cases.

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