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Steven Babitsky, Esq.
James J. Mangraviti, Jr., Esq.
The main reason an expert is involved in a case is to state her opinion. The principal reason an expert writes a report is to communicate that opinion. The opinion must be communicated effectively and must be expressed in a defensible manner. The authors recommend the following.
· Stating all opinions clearly, explicitly, and with confidence.
· Using the magic words “based upon a reasonable degree of (medical, engineering, legal, accounting, jewelry appraisal, or other field) certainty” or “based on a reasonable degree of (medical, engineering, legal, accounting, jewelry appraisal, or other field) probability” when expressing the opinion in the report.
· Avoiding hedge words, such as “it seems,” “I think,” and “I believe” when expressing opinions in the expert report.
· Stating the reasons that justify the opinion in concise bullet-point format.
· Avoiding expressing net opinions; that is, bare conclusions without supporting justification.
· Stating all of the opinions the expert expects to express at trial.
· Documenting a detailed and reliable methodology so that the report will not be challenged under Daubert.
The reason an expert report is prepared is so that the expert can express her opinion(s). These opinions should be stated clearly, explicitly, and confidently. For expert opinions to be admissible in most civil cases, the expert generally must believe that it is more likely than not that her opinion is correct (51% or more certainty). There are certain “magic words” that are commonly accepted as expressing the idea that the expert is 51% or more certain of her opinion. These include the expressions “based upon a reasonable degree of (medical, engineering, legal, accounting, jewelry appraisal, or other field) certainty” and “based on a reasonable degree of (medical, engineering, legal, accounting, jewelry appraisal, or other field) probability.” It is good practice to use one of these phrases when stating an expert opinion in a report.
Hedge words, such as “it seems,” “I think,” and “I believe,” should be avoided. Such words suggest that the expert does not have confidence in her opinion. Failure to state opinions clearly and with confidence will make the report and opinion vulnerable to attack on cross-examination and could possibly result in the report being stricken by the judge.
Example 10.21: “Could” and “possibility” insufficient to establish proof by a preponderance of the evidence
Perkins v. Entergy Corporation, 756 So.2d 388 (La.App. 1 Cir.,1999)
This case dealt with a flash fire at an air separation facility. The expert Schmidt concluded in his report:
[D]uring highly abnormal pipeline operating conditions, which occurred during the early hours of April 6, 1994, circumstances could have developed which caused the movement of metallic particles through the piping network [of the ALAC facility]. Therefore, the potential availability of metallic particles within a piping system and the likelihood of particle impact or frictionally induced ignition becomes a statistical possibility. (Emphasis added.)
The court found the language on causation too indefinite and stated:
This conclusion is clearly insufficient to establish cause in fact, which requires proof by a preponderance of the evidence. See Dabog. 625 So.2d at 493. One must prove what probably happened as opposed to what “could” have happened and what is a "statistical possibility."
Example 10.22: Overly vague opinion insufficient
Piascyk v. City of New Haven, 64 F. Supp2d.19 (D.Conn. 1999)
This case dealt with an ADA case filed by a police officer. The expert report was written by a physician, Shine. In support of the plaintiff’s claim that he was substantially limited with regard to carrying, the plaintiff offered only Dr. Shine’s statement in his report to the New Haven Workers’ Compensation Division that plaintiff would have difficulty “carrying heavy loads….” The court rejected the indefinite language “carrying heavy loads” and stated:
This statement is too vague to support a finding that plaintiff is significantly restricted in his ability to carry compared to the average person. See Colwell, 158 F.3d at 644 (testimony that plaintiff could not lift “very heavy objects” did not support a finding of substantial limitation).
Example 10.23: Failure to be clear and explicit
Report States:
Although Buildem Engineering had no direct contractual responsibility for safety, Mr. Donnelley did recognize the hazard. It is true that Mr. Donnelley told Mr. First, the project engineer, of the danger he saw. I feel Mr. First should have responded. He should have advised Mr. Williams and verified that corrective action resulted. All engineering societies exhort members to hold safety paramount.
Resulting Cross-examination:
Q. When you say in your report, “he should have advised Mr. Williams” who are you referring to?
A. Mr. First.
Q. Do you know what corrective action should have been taken?
A. Yes.
Q. Do you specify the action in your report?
A. Well. . .I discuss that on page 7, but I don’t detail it.
Q. So you did the same thing Mr. First did?
A. Huh?
Q. You knew what should have been done, but never told anyone?
A. I explained myself, maybe I could have expressed myself better.
Q. You don’t know how many engineering societies there are, do you?
A. Well, it’s over 50 but. . .no I don’t know.
Q. So, when you wrote “all engineering societies exhort members to hold safety paramount” you just misspoke?
A. I should have been more precise with my language.
Q. Agreed.
Comment: The expert’s opinions need to be stated clearly and explicitly. This was not done in this example. A clearer and more explicit way to state the expert’s opinions in this case would be as follows:
It is my opinion, based upon a reasonable degree of engineering certainty, that Mr. First failed to follow fundamental safety practices by failing to advise Mr. Williams of the danger at the site and failing to verify that corrective action took place.
Example 10.24: Failure to state opinion confidently: “cannot be ruled out”
Report States:
Therefore, based upon the foregoing and a reasonable degree of engineering certainty, it is our opinion electrical failure cannot be ruled out as a possible cause of loss.
Resulting Cross-examination:
Q. So, your opinion is that electrical failure caused the loss?
A. No, that’s not what I said.
Q. You qualified your opinion, correct?
A. Yes.
Q. In fact, you used three qualifiers in your opinion?
A. Three?
Q. A reasonable degree of engineering certainty would be what expressed in a percentage form?
A. 51 percent.
Q. Your use of the term “possible” indicated less than 51% certainty, correct?
A. Yes.
Q. And, the phrase “cannot be ruled out” even less certainty.
A. That’s true.
Q. Would it be fair to say that there were several potential causes of the loss here?
A. Yes.
Q. In fact, how many potential causes of the loss could you “not rule out”?
A. Approximately seven.
Q. You’re not even certain about this, sir?
A. Well, there are various degrees of certainty.
Q. Would it be fair to say that you cannot truthfully testify with a reasonable degree of engineering certainty as to what in fact caused the loss?
A. Yes, that’s true.
Comment: Not only is this opinion highly vulnerable to cross-examination, the opinion may also be vulnerable to legal challenges.
Therefore, based upon the foregoing and to a reasonable degree of engineering certainty, it is our opinion that electrical failure is more likely than not the cause of this loss.
Example 10.25: “It would seem to me” language takes away from opinion
Report States:
It would seem to me, therefore, that the treatment rendered from August 31, 1998 to present was not reasonable or necessary.
Resulting Cross-examination:
Q. Are you certain that the treatment rendered from August 31, 1998 to present was not reasonable or necessary?
A. Yes.
Q. Sir, how old are you?
A. 53, but I don’t see how that is relevant, counselor.
Q. Why didn’t you say “it would seem to me” I am 53 years old?
A. Because I know precisely how old I am.
Q. As opposed to your opinion on the reasonableness of the treatment when you said, “it seems to me it was not reasonable or necessary”?
Comment: The weight the expert’s opinion will likely be given is greatly lessened by his inclusion of the “it would seem to me” language. This language suggests uncertainty. This report would likely be given more weight had the expert used confident language to express his opinion:
It is my opinion, based upon a reasonable degree of medical certainty, that the treatment rendered from August 31, 1998 to present was neither reasonable nor necessary. I base this opinion on the following:
1. …
Example 10.26: “I do not think” language lessens weight report will be given
Report States:
I do not think that the revision of the total knee arthroplasties that took place following his accident of 2/7/94 were necessitated by the accident itself.
Comment: This report would have been far better had it used more confident language:
It is my opinion, based upon a reasonable degree of medical certainty, that the revision of the total knee arthroplasties that took place following his accident of 2/7/94 were not necessitated by the accident itself. I base this opinion on the following reasons.
1. …
Example 10.27: “I do not believe” language lessens weight report will be given
Report States:
I don’t believe that the laminectomies at T5 to T6 caused any significant increase in Mr. Collins’s complaints.
Comment: The “I don’t believe” language takes away from the expert’s opinion.
It is my opinion, based upon a reasonable degree of medical certainty, that the laminectomies at T5 to T6 did not cause any significant increase in Mr. Collins’s complaints. I base this opinion on the following reasons:
1. …
Example 10.28: “The following conclusions can be made”
Report States:
Based on the foregoing, and to a reasonable degree of engineering certainty, the following conclusions can be made.
Comment: This expert’s conclusions would be more persuasive if the “can be made” language was replaced with more confident language.
Based on the foregoing, and to a reasonable degree of engineering certainty, I have made the following conclusions:
1. …
Example 10.29: “It can be argued”: expert now an advocate?
Report States:
Thus it can be argued that Dr. A should have never been doing HIV testing/interpretation in the first place, based on his admitted lack of experience.
Resulting Cross-examination:
Q. You testified that “it can be argued that Dr. A should have never been doing HIV testing/interpretation in the first place, based on his admitted lack of experience”?
A. Correct.
Q. It could also be argued that he should have been doing the HIV testing, correct?
A. Yes.
Q. Thank you, no further questions.
Comment: The “it can be argued” language should not have been used. This language may make the expert either appear to be an advocate or unsure of himself. Better language follows.
It is my opinion, based upon a reasonable degree of medical certainty, that Dr. A breached the standard of care in providing Mr. Jones HIV testing and interpretation. Dr. A had no training or experience in HIV testing and HIV test interpretation.
The opinions expressed in the report should be supported with reasons that justify them. When the opinions are so supported, the weight that will likely be given to the expert’s report will be increased significantly. If possible, the supporting reasons should be listed as a concise bullet-point list. Consider the following examples, which clearly and explicitly state the reasons for the experts’ opinions.
Example 10.31: Detailed reasons to support opinion provided in bullet-point list
Report States:
It is my opinion, based upon a reasonable degree of medical certainty that S.B., M.D. provided markedly substandard care in:
(a.) Embarking on a course of very prolonged, poorly monitored lytic therapy in a case which required treatment by surgical thrombectomy because of the sensory and motor changes present;
(b.) Having started therapy for whatever reason, failing to use an aggressive fragmentation, high concentration, directed lytic agent infusion; and for some reason starting and continuing therapy in a demonstrably non-essential, currently and previously non-collateralizing profunda femoris artery while the condition of the right foot and leg continued to deteriorate;
(c.) Failing to recognize that the previously angiographically demonstrated major collateral, the DBrLCF was obstructed and that Mr. B.’s leg and foot were not in the same condition as before by-pass surgery and now had insufficient collateralization to maintain viability;
(d.) Continuing the infusion in a non-essential artery for 11 hours after the current patient complaint began, before trying to clear the bypass graft of clot;
(e.) Failing to pursue established principles of lytic therapy, and/or failing to observe the limitations, the indications and contraindications of the technique; and
(f.) Failing to obtain adequate supervision of his performance from the surgeons in an area of treatment he claims is beyond his ability to evaluate and conduct.
It is my further opinion that because of each and all of these incidents of failing to render care to a current medically acceptable standard, Mr. B. unnecessarily suffered the loss of his right leg below the mid-thigh.
Comment: The expert’s conclusions in this report are made more persuasive by the expert’s inclusion of the reasons for his opinion. The bullet-points make the report easy to read and even more persuasive.
Example 10.32: Reasons to support opinion stated
Report States:
The claimant sustained severe closed head injury with persistent cognitive defects and post traumatic seizure disorder. The symptoms are all causally related to the claimant’s last accident on June 14, 1995. The reason they are causally related are that the claimant sustained a head injury in the past. However, he never had any seizures as a result of any prior injury. Of note, one week following this last injury he suffered on the aircraft he did sustain seizures and they were poorly controlled.
Comment: The expert’s conclusions in this report are made more persuasive by the expert’s inclusion of the reasons for her opinion.
Failure to state reasons for the expert’s opinion makes the report less credible and may make it particularly vulnerable to legal challenges. “An expert’s report which offers only a bare conclusion—nothing more than a bottom line—is insufficient to prove the expert’s point.” This is what is known as a net opinion. Net opinions are inadmissible. Please consider the following examples.
Example 10.41: Overly vague opinion insufficient
Ohime v. Foresman, 186 F.R.D. 507 (N.D.Ind.,1999)
In this case, the proffered report of a psychiatric social worker, Nott, was found to be deficient. The court stated:
Mr. Nott’s second report still is deficient under Rule 26(a)(2)(B). The report states a summary of Ms. Ohime’s two meetings with Mr. Nott (arguably the data or other information on which Mr. Nott relied in making his report), but it contains only a three-sentence paragraph of vague conclusions as to his expert opinion of Ms. Ohime’s condition. These conclusory determinations are insufficient under Rule 26(1).
Example 10.42: Overly vague opinion insufficient
Hemmen v. Atlantic City Medical Center, 758 A.2d 1145 (N.J.Super.L.,1999)
This was a medical malpractice case. The court found the expert’s report an
inadmissible net opinion and stated:
I recognized that the expert may have been reporting that the medical community understands that of the cases of drug induced sciatic nerve damage, negligence is the most frequent cause. Such a report, however, must rest upon the expert’s experience or upon textual support. Connors v. University Associates, 769 F.Supp. 578, 587 (D.Vt.1991) aff’d 4 F.3d 123 (2d Cir.1993). In the absence of such a basis, the opinion of the relative frequency of negligent and non-negligently caused damage would be an inadmissible net opinion, bereft of any factual underpinning.
Example 10.43: One-page conclusory report insufficient under Rule 26(a)(2)B
Bank Brussels Lambert v. Credit Lyonnais, 2000 WL 1762533 (S.D.N.Y. 2000)
The court stated:
The Perkins Report is a one page report that states a conclusion and offers no support for it. While it states that the conclusion is based on the “review of the brokers’ reports and borrowing base reports” it does not explain the rationale that led to the conclusion nor does it set forth the testimony that will be provided at trial. As a result, the amount of information provided in the Perkins Report is not sufficient under Rule 26(a)(2)(B). Further, the Perkins Report fails to state that it is responding to the Boothman Sherwin Report.
An expert who files a pretrial report and fails to mention important information (for instance, that she conducted an out-of-court experiment) does so at her peril. Opposing counsel will argue that it was not adequately apprised of the basis for the expert’s opinion and/or that the expert and counsel failed to supplement its discovery responses.
In Metropolitan Life Insurance Company v. Tomchik, the court found the expert’s report, which did specifically reveal an out-of-court experiment, was legally sufficient. The court stated:
In the instant case, although Lurwig’s report does not specifically state that an out-of-court experiment was conducted, it is apparent from the photographs and from the statement in the report that Lurwig had made a model work piece, that Lurwig’s opinion was based, in part at least, on the results of an experiment regarding kerf marks. In addition, the report makes very clear that it was Lurwig’s expert opinion that the amputation of appellant’s thumb could not have occurred in the manner described by appellant. At trial, Lurwig did not change his opinion in this regard. The fact that Lurwig conducted an experiment in forming his opinion appears to be a nuance in his opinion, rather than the opinion itself. The report was sufficiently clear to apprise appellant as to Lurwig’s opinion and to present appellant with a reasonable opportunity to prepare a defense against it.
The expert’s report should contain all of the opinions the expert expects to express at trial. Failure to include all opinions may result in the preclusion of the expert from offering at trial the opinions that were not included in the expert’s report. Failure to include all opinions may also be a subject of pointed cross-examination.
Example 10.61: Some opinions omitted from report
Report States:
This letter contains some of my opinions in the above referenced matter.
Resulting Cross-examination:
Q. You do have other opinions on this case which were not contained in your letter, correct?
A. Yes.
Q. Why did you omit these opinions?
A. I was asked to.
Q. By counsel who retained you?
A. Yes.
Q. This was after you shared these opinions with her?
A. Well, . . . yes.
Q. So, these opinions are ones you and counsel decided should not be shared with her honor and the members of the jury?
A. I was just. . ..
Q. Following orders?
A. Completing my assignment.
Q. Let’s go through these opinions and see why it was decided that they should not be shared with the jury.
Comment: This language should be avoided because it can be made to appear as though the expert is intentionally withholding some of his opinions.
When expert reports are offered with conclusory statements in lieu of the basis for the expert’s opinions, they are stricken and found to be legally insufficient under Rule 26.
Mr. Nott’s second report still is deficient under Rule 26(a)(2)(B). The report states a summary of Ms. Ohime’s two meetings with Mr. Nott (arguably the data or other information on which Mr. Nott relied in making his report), but it contains only a three-sentence paragraph of vague conclusions as to his expert opinion of Ms. Ohime’s condition. These conclusory determinations are insufficient under Rule 26(1).
Example 10.72: Conclusory report inadmissible in Texas medical malpractice case
Hart v. Wright, 16 S.W.3rd 872 (Tex.App.-Fort Worth 2000)
This was a Texas medical malpractice case. The Medical Liability and Insurance Improvement Act contains expert report writing standards and was enacted to curtail frivolous claims against physicians and related healthcare providers. The court dealt with and rejected a written report in affidavit form.
An expert report is defined as any report written by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding: (1) the applicable standard of care; (2) the manner in which the care rendered by defendant failed to meet the standard of care; and (3) the causal relationship between that failure and the injury, harm, or damages claimed.
Appellants offered this written report of Dr. Maewal in affidavit form to comply with their obligation under the Act:
My name is Hrishi K. Maewal. I am over the age of majority. I have never been convicted of a felony or a crime of moral turpitude, and I am in all things qualified to make this affidavit.
I am a physician licensed to practice medicine in the State of Texas.
I am currently practicing medicine and was practicing medicine on January 22, 1996.
I am board certified in Internal Medicine, Pulmonary Disease, Cardiology, and Critical Care Medicine.
I examined Bobby Hart at Harris Methodist Fort Worth Hospital on January 23, 1996.
Based on the history obtained from the patient and his family members along with the supporting evidence of laboratory evaluation which showed an elevated creatine kinase of 1854 U/L, CK-MB 219.7 ng/ml and % relative index 11.9 at 10:41 a.m. along with an EKG which shows an inferior infarction with Q-waves, in my expert opinion, Mr. Hart was experiencing an acute myocardial infarction at approximately 5:00 p.m. on January 22, 1996 while a patient in the emergency room at Huguley Memorial Hospital.
Based on the above analysis, Dr. Wright, the treating physician at Huguley Memorial Hospital, and Huguley Memorial Hospital departed from the acceptable standard of care for the diagnosis, medical care, and treatment of a patient with an acute myocardial infarction.
Appellants argue that even thought Dr. Maewal’s report does not include all of the information required by section 13.01(r)(6), it nonetheless satisfies the definition of an expert report. We disagree because Dr. Maewal’s report does not address a standard of care, deviation from that standard, or that a deviation from the standard caused injury or damages. See id. The report merely concludes that Mr. Hart demonstrated signs and symptoms of a heart attack at a time and place with which Dr. Maewal had no connection. For Dr. Maewal to qualify as an expert, the report had to show that he had knowledge of the accepted standards of care for the diagnosis, care and treatment of the injury involved, how the applicable standard was breached, and how the alleged breach contributed to Appellants’ injuries or damages. See id. §§ 13.01(r)(5), (6). While a party need not marshal all its proof, a good faith effort in preparing an expert report must, at a minimum, attempt to incorporate the three requirements found in section 13.01(r)(6). Here, the conclusory report is not the good faith effort required by the statute. We overrule issue one.
Example 10.73: No reasons stated for this conclusion
Report States:
Care by paramedics and intermediate EMS staff was appropriate.
Resulting Cross-examination:
Q. Your conclusion in your report is that care by the paramedics and EMS staff was appropriate?
A. Yes.
Q. Where in your report do you explain your reasoning and provide facts and the scientific rationale for this conclusion?
A. It’s not in there.
Q. So, you are asking this jury to just accept this naked conclusion without any basis in fact or science?
Comment: Conclusions without supporting reasoning are not persuasive. Conclusions should always be supported with reasoning.
Care by paramedics and intermediate EMS staff was appropriate. I base this conclusion on the following...
Example 10.74: Conclusion without support insufficient under Rule 26
Bank Brussels Lambert v. Credit Lyonnais, 2000 WL 1762533 (S.D.N.Y. 2000)
The court rejected a one-page conclusory report and stated:
The Perkins Report is a one page report that states a conclusion and offers no support for it. While it states that the conclusion is based on the “review of the brokers’ reports and borrowing base reports” it does not explain the rationale that led to the conclusion nor does it set forth the testimony that will be provided at trial. As a result, the amount of information provided in the Perkins Report is not sufficient under Rule 26(a)(2)(B). Further, the Perkins Report fails to state that it is responding to the Boothman Sherwin Report.
Example 10.75: Net opinion inadmissible
Hemmen v. Atlantic City Medical Center, 758 A.2d 1145 (N.J.Super.L. 1999)
This was a medical malpractice case. The court found the expert’s report an inadmissible net opinion and stated:
I recognized that the expert may have been reporting that the medical community understands that of the cases of drug induced sciatic nerve damage, negligence is the most frequent cause. Such a report, however, must rest upon the expert’s experience or upon textual support. Connors v. University Associates, 769 F.Supp. 578, 587 (D.Vt.1991) aff’d 4 F.3d 123 (2d Cir.1993). In the absence of such a basis, the opinion of the relative frequency of negligent and non-negligently caused damage would be an inadmissible net opinion, bereft of any factual underpinning.
The courts continue to reject reports where the expert’s opinion is expressed vaguely, equivocally, or with insufficient certainty.
Example 10.81: “Could” and “possibility”
Perkins v. Entergy Corporation, 756 So.2d 388 (La.App. 1 Cir. 2000)
The court dealt with the case of a flash fire at an air separation facility. The expert Schmidt concluded in his report:
[D]uring highly abnormal pipeline operating conditions, which occurred during the early hours of April 6, 1994, circumstances could have developed which caused the movement of metallic particles through the piping network [of the ALAC facility]. Therefore, the potential availability of metallic particles within a piping system and the likelihood of particle impact or frictionally induced ignition becomes a statistical possibility. (Emphasis ours.)
The court found the language on causation too indefinite and stated:
This conclusion is clearly insufficient to establish cause in fact, which requires proof by a preponderance of the evidence. See Dabog. 625 So.2d at 493. One must prove what probably happened as opposed to what “could” have happened and what is a “statistical possibility.”
Example 10.82: Vague report cannot support finding for plaintiff
Piascyk v. City of New Haven, 64 F.Supp.2d 19 (D.Conn. 1999)
The court dealt with an ADA case filed by a police officer. The expert report was written by a physician, Shine.
In support of his claim that he is substantially limited with regard to carrying, plaintiff has offered only Dr. Shine’s statement in his report to the New Haven Workers’ Compensation Division that plaintiff would have difficulty “carrying heavy loads….” (Shine Report, Plaintiff’s Exhibit 11.)
The court rejected the indefinite language “carrying heavy loads” and stated:
This statement is too vague to support a finding that plaintiff is significantly restricted in his ability to carry compared to the average person. See Colwell, 158 F.3d at 644 (testimony that plaintiff could not lift “very heavy objects” did not support a finding of substantial limitation).
Experts should be aware that their reports will be closely scrutinized under the Daubert doctrine to see if they are not only relevant but reliable. [See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.2786 125 L.E.2d 469 (1993); General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 517, 139 L.E.2d 508 (1977); and Kumho Tire Co. Limited v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.E. 2d 238 (1999).] Under the Daubert line of cases the judge will act as a gatekeeper to screen out and exclude unreliable expert testimony and reports. The judge will consider several factors, including:
1. whether the theory or technique used by the expert can be, and has been, tested,
2. whether the theory or technique has been subjected to peer review and publication,
3. the known or potential rate of error of the method used, and
4. the degree of the method’s or conclusion’s acceptance within the relevant scientific community.
An expert report will survive Daubert challenges if the report is based upon reliable methodology and if this methodology is spelled out clearly in the report. Please consider the following examples.
Example 10.91: Minimal examination, report stricken
Minisan v. Danek Medical, Inc., 79 F.Supp. 2d 970 (N.D.Ind. 1999)
This was a pedicle screw medical device case. The plaintiff offered the report of Dr. Lance Yarus, an osteopath, as her only evidence. The court rejected the report and proposed testimony. The court stated:
Dr. Yarus states that he arrived at his conclusions based solely on an examination of Minisan’s numerous medical records. He apparently never examined her, met with her, or even spoke to her. Neither did he examine or test the TSRH device. Dr. Yarus concludes that “both surgical interventions were the proximate cause of the non-unions and subsequent development of pain.” (Def’s Mem. In Supp., Ex. 0 at 4.) He also concludes that Minisan’s continued disability is directly related to the metallic devices. (Id.) Under Daubert, the expert “must explain precisely how [he] went about reaching [his] conclusions and point to some objective source… to show that [he] has followed the scientific method…” Daubert v. Merrell Dow Pharm., 43 F.3d 1311, 1317 (9th Cir.1995) (Daubert II). Similar to his reports provided in other bone screw cases, Dr. Yarus has failed to provide any explanation as to how he reached his conclusions. See McCollin, 50 F.Supp.2d 1119, 1126-27; Hartwell, 47 F.Supp.2d 703, 712-13; Pulice, 199 WL 613370 at * 5-9; Moses v. Danek Medical, Inc. No.CV 95-512, 1998 WL 1041279 at *7 (D.Nev. Dec. 11, 1998). Dr. Yarus has not met the standard set forth in Daubert. The court therefore concludes that Dr. Yarus’ opinion is simply insufficient to create a material fact issue for trial with respect to the issue of causation.
Example 10.92: Economic professor’s review of General Motors’ business plan reliable
Voilas v. General Motors Corp., 73 F.Supp. 452 (D.N.J. 1999)
The court dealt with an economics professor testifying as to the employer’s financial plans regarding its decision to sell, close, or keep its automobile plant open. The court held that the expert’s report was not unreliable and stated:
Turning to GM’s arguments, this Court disagrees that Dr. Tinari’s liability report is unreliable because he employed no particular methodology, but merely reviewed GM’s own analyses of disposition plans for the Trenton plant. Indeed, an experienced economist’s clarification and summary of a large corporation’s business plans could certainly prove helpful to the average juror who presumabl[y] lacks such experience in and knowledge about complex financial matters, even if doing so does not require employing any particular methodology but simply a straightforward review of the corporation’s data. See Downing, supra, 753 F.2d at 1235 (quoting Federal Rule of Evidence 702 and recognizing that “[t]he touchstone of Rule 702…is helpfulness of the expert testimony, i.e., whether it ‘will assist the trier of fact to understand the evidence or to determine a fact in issue.’”). In this context of reviewing and summarizing GM’s business plans, the Court is satisfied that Dr. Tinari’s report is sufficiently reliable, entitling him to testify as to his review and summary of GM’s financial analyses.
Example 10.93: Causation opinion based on anecdotal case reports rather than epidemiological studies unreliable
Brumbaugh v. Dandot Pharmaceutical Corporation, 77 F.Supp.2d. 1153 (D.Mont. 1999)
The court stated:
The challenged expert, Dr. Iffy, opines that he believes Parlodel has caused a chronic seizure condition in plaintiff. To support his opinions, he relies not on epidemiological studies but on anecdotal case reports and his theory that Parlodel can act as a vasospastic agent instead of a vasodilator. …
Dr. Iffy recognizes the insufficiency of reliance on case reports or ADE’s to establish causation when he states that controlled studies are necessary to show that a particular drug causes an event or a particular reaction. Yet, he has developed a hypothesis that plaintiff’s seizure and other seizures reported in ADE’s and case reports were caused by Parlodel-induced vasospasms. He admits that it is “simply a hypothesis” which has not been tested and may be impossible to test. …
Dr. Iffy is, in essence, opining that plaintiff’s seizures are due to Parlodel because he believes that. He admits that this causation opinion is “simply a hypothesis.” Since they lack the rigor imposed by scientific methodology, Dr. Iffy’s opinions do not have the evidentiary reliability to be admissible and are therefore excluded pursuant to Fed.R.Evid. 702 and 703.
Example 10.94: Inability to replicate or explain data, testimony barred
Koch v. Shell Oil Company, 49 F.Supp. 2d 1262 (D.Mont. 1999)
This case involved the impact that the feed additive Rabon had on a dairy herd and the farmer and his family. The court rejected the testimony of Dr. Ruth and stated:
Thus, the court finds that all four of the Daubert factors weigh against the admissibility of Dr. Ruth’s testimony. In particular, the court is extremely concerned with the scientific validity and reliability of the testing performed by Dr. Ruth, as discussed above in relation to the first Daubert factor. Dr. Ruth’s testimony indicates that he himself cannot reconstruct the calculations that he performed to reach his results. Since Dr. Ruth is unable to reconstruct that information and believes that there are mistakes in his calculations, the court is unable to find that the results of his testing were valid and reliable. Therefore, the court concludes that Dr. Ruth’s testimony is inadmissible pursuant to Fed.R.Evid. 104(a) and 702.
Example 10.95: Ignorance of key facts, report stricken
United Phosphorus Ltd. V. Midland Fumigant, Inc., 173 F.R.D. 675 (D.Kan. 1997)
The court rejected the report of Dr. Richard Hoyt, explaining:
The court determines, based on the foregoing, that Hoyt violated a fundamental principle of economics when he failed to consider in his report the actions of Midland in estimating a value for the Quick-Phos trade name. Hoyt did not read any of the depositions (notably of Fox, Lynn, or Estes) before he rendered his report. Consequently, he was required to evaluate the Quick-Phos trademark with little knowledge about the facts of the case, and no knowledge about the underlying admissions from Midland’s president and sales managers. The court finds that such ignorance of undisputed facts violates Daubert’s requirement that an expert report and opinions must be based on “scientific knowledge.”
Example 10.96: General report inadmissible, fails Daubert test
United States Equal Employment Opportunity Commission v. Rockwell International Corporation, 60 F.Supp.2d 791 (N.D.Ill. 1999)
The court dealt with the expert report of a vocational counselor, Brethauer. The court first found that the report failed the reliability requirements of Daubert.
He performed analyses he would not normally perform. He included analyses that he would not normally include. He included calculations upon which he did not rely and did not fully believe should be followed. He relied on materials, reports and summaries given to him by counsel, and failed to verify the information from reliable, independent sources.
The court went on to discuss the fatal lack of specificity of the report.
Additionally, the court concludes that Brethauer’s report, like the report in Zarzycki, is too general to be of use to the jury. Like the expert in Zarzycki, Brethauer failed to take into account the specific job market in the geographical area to which the Claimants had access. Brethauer’s report also fails to contain evidence on the approximate number of actual jobs from which the Claimants could be excluded because of the perceived impairment. Instead, Brethauer analyzed job titles contained in the DOT. Without any evidence of the number of jobs contained in each job title, Brethauer’s report supplies no information from which a jury could determine the number of jobs from which the Claimants were considered excluded. Accordingly, the court holds that the report fails under Daubert’s relevancy requirement.
Oddi v. Ford Motor Company, 234 F.3rd 136 (C.A.3, Pa. 2000)
This was a crash-worthiness case in which the plaintiff was catastrophically injured when his truck struck a guard rail and bridge abutment. The expert, Noettl, was an engineer retained to testify about defective design.
In his preliminary report, Noettl opined that the truck Oddi was driving rode up on the guard rail because of the failure of the left side of the front bumper…Had the bumper not significantly deformed back and inward the vehicle would have been deflected by the guard rail.
It is also my opinion that the floor board allowed intrusion by the guard rail and possibly the concrete barrier into the occupant compartment in the area near the brake pedal and where the driver’s feet and legs would be located. This intrusion was a direct cause of the injuries to Mr. Oddi.
Had the bumper and the floor board been properly structurally designed the vehicle would not have gone over the guard rail and the occupant compartment would not have been intruded by the guard rail and concrete barrier. App. At 104-105.
After he reviewed the deposition of defense expert Donald Edelen, Noettl submitted an amended report, dated December 4, 1997. In it he stated:
It is my opinion that [Ford] should have warned [Grumman] of the fact that the front bumper on their chassis is for decorative trim only and will not offer protection to the body and occupant in a collision. As a result of the design of the chassis and bumper, the front wheels of the vehicle become exposed in foreseeable accident situations. Ford should have specifically warned that the bumper was extremely weak due to the fact that it had no backing plate or brackets for reinforcement and because it had holes in the bumper placed immediately adjacent to the outside where the bumper mounted to the chassis.
The court rejected his proposed testimony and stated:
Noettl posited two hypotheses. His first hypothesis was that the front bumper’s design should have included either bracketry or a brace system that would have increased the bumper’s rigidity, prevented the truck from ramping, and deflected the vehicle back onto the roadway after impact with the guard rail. His second hypothesis was that thicker and/or ribbed metal on the flooring of the cab would have retained the integrity of the cab. However, Noettl quite candidly testified that he never tested either hypothesis. Consequently, he has not satisfied the first of the Daubert factors. The Supreme Court has explicitly instructed, “[o]rdinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” Daubert at 593, 113 S.Ct. 2786. [Emphasis added.]
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SMS Systems Maintenance Services v. Digital Equipment Corporation, 188 F.3rd11 24 (1999).
Tex.Rev.Civ. Stat. Ann. Art. 49501 Sec. 13.01(d)1.
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