DAUBERT AGAIN (Spring 97 issue)

Many attorneys try to use the landmark decision Daubert as a tool to disqualify any expert. The Federal Rule of Civil Procedure, 702, governs which witnesses can be designated as expert witnesses. The basis of the qualification is their "knowledge, skill, experience, or training". In Compton v Subaru of America, Inc. 10th Cir., No. 94-3429, April 30, 1996. The court said the "application of the Daubert factors is unwarranted in cases where the expert testimony is based solely upon experience or training". The court went on to quote the Daubert ruling by saying that "in such cases, Rule 702 merely requires the trial court to make a preliminary finding that proffered expert testimony is both relevant and reliable while taking into account '[t]he inquiry envisioned by Rule 702 is . . . a flexible one.' Subsequent to Daubert, we have continued to apply essentially the same Rule 702 analysis except in cases involving unique, untested, or controversial methodologies or techniques".

This case involved an engineering expert who was testifying on behalf of a passenger injured in the rollover of a Subaru car when the roof and side of the car caved in. He testified that the car was improperly designed because the damage protruded to far into the passenger space during the impact.

The lower court allowed his testimony over the objections of the defendants indicating that Daubert applied because there was some scientific knowledge involved. The appellant court agreed that his testimony should have been allowed but stated that Daubert was not the basis for it. The expert's opinions were based on general engineering principles and his experience as an automotive engineer.

In a Southern District of New York case, it was held that it was not wrong to have allowed the testimony of a safety consultant. Plaintiff had his arm amputated as a result of an injury while using a meat grinding machine. His testimony was that the particular machine was defective because risk of injury had not been reduced to an acceptable level. His testimony was based on his experience.

Defendants claimed that his testimony should have been excluded under the Daubert decision. The appellant court stated, " that where courts have found an expert opinion was based on personal experience alone, Daubert has not been applied. . . Expert opinion based on personal experience cannot always be evaluated on the basis of 'rate of error', 'peer review' or 'general acceptance' in the relevant scientific community."

Attorneys using experts should be aware of the restrictions on the use of the Daubert opinion so as to be ready to meet challenges to their expert's opinions. Liriano v. Hobart Corp., S.D.N.Y., 94 Civ. 5279 (SAS) October 14, 1996.

Home ! Search Page ! Master index ! Table of Contents this newsletter