Big Daubert Hurdles In Fire & Explosion Litigation - Revisiting The Importance Of Testing An Expert's Theories
December, 2007
by Dean S. Rauchwerger and Michael S. Errera and Allison K. Ferrini and John F. O'Brien III
In CM Report 2006 Volume 2, we discussed the general principles governing admissibility of expert testimony in fire and explosion litigation since the U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Daubert provided four key factors to determine admissibility of scientific evidence:
1. whether the theories and techniques employed by the scientific expert can and have been tested;
2. whether they were subjected to peer review and publication;
3. the known or expected rate of error; and
4. whether the theory or methodology employed is generally accepted in the relevant scientific community.
Failure to meet the “testing factor” has become, under certain circumstances, a significant hurdle for ensuring that the fact finder is provided with the often crucial expert opinion testimony.
“Failure To Test” Hurdle
As a practical matter, testing of an expert’s hypothesis should be considered in establishing the necessary reliability required by Daubert. Over the past eighteen months, courts have upheld the necessity of testing to add credence to expert theories:
• Solheim Farms, Inc. v. CNH America, LLC, 503 F. Supp. 2d 1146 (D. Minn. 2007) - expert’s theory that field trash resulted in ignition and destruction of a tractor was barred, resulting in summary judgment for defendant. The court noted, “the day of the expert, who merely opines, and does so on basis of vague notions of experience, is over.” Id. at 1150. Among cited deficiencies were: 1) failure to test whether trash can accumulate dangerously inside a tractor; 2) what amount and type of trash was required to cause ignition; and 3) whether sufficient air current was present to fuel a fire.• Hartford Ins. Co. v. General Electric Co., Nos. 06-362S & 07-007S, 2007 WL 4299793 (D. R.I. Dec. 7, 2007) - expert theory that a defective water dispenser led to a fire when a damaged water tank leaked, leading to continual operation and overheating of the dispenser’s heating element, was prohibited from presentation to the jury. In barring the expert, the court noted the experts were not trained as electricians, which called into doubt their ability to offer opinion testimony relating to electrical issues, and the experts failed to perform a test upon an exemplar unit they were provided with during discovery to verify their theory. These failures, including failure to properly disclose expert opinions, resulted in the court barring the experts’ testimony and granting defendants summary judgment, as the plaintiff could no longer show the required link between the alleged product failure and the fire’s ignition.• Lum v. Mercedes Benz, U.S., LLC., Slip Copy, No. 3:05CV7191, 2007 WL 1362366 (N.D. Ohio May 7, 2007) - expert’s theory that a driver suffered burns to a hand following deployment of an airbag was precluded, as no attempt was made to replicate the expert’s causation theory. Although the expert’s theory was based on information, photographs, and examination of the deployed airbag, and reports and tests on other allegedly malfunctioned airbags, the expert did not undertake testing on exemplar airbags to demonstrate that his causation theory was plausible or reliable. Since tests of the theory could have been done, but were not, the expert’s theory was found not to be sufficiently based on reliable methodology.• Honaker v. Innova, Inc., Slip Copy, No. 1:04-CV-132(M), 2007 WL 1217742 (W.D. Ky. Apr. 23, 2007) - failure of expert to test theory that a pressure cooker exploded after a flash vaporization and admission that expert’s theory would be difficult to test, formed basis of court’s preclusion.• Pro Service Automotive, L.L.C. v. Lenan Corp., 469 F.3d 1210 (Mo. 2006) - defendant granted summary judgment after theory of plaintiff’s expert was barred where the expert opined that a hole in the wall of a waste oil heater, which did not contain a temperature limiting sensor, ignited combustible materials and led to destruction of a building, was a design defect. The court found that the expert’s design defect theory was not supported by “testing, drawings, models or other evidence to demonstrate the utility or feasibility of placing a temperature-limiting sensor” on the heater’s wall. Id. at 1213. The expert also failed to test his theory that the hole in the heater could generate sufficient heat to ignite combustible materials.• Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) - expert’s theory that a truck driver’s death from fire after the truck suffered a roll-over due to a variety of design defects involving the truck’s battery and fuel system was excluded because the expert did not inspect truck artifacts, no reconstruction of the accident was performed, the expert failed to show a link or support for his theory based on his review of over 5,000 studies of post-collision fuel-fed fires, and the expert failed to test the type of battery involved in the accident to verify his theory that the battery’s placement was a contributing cause of the fire. Without the expert’s testimony to establish liability, summary judgment for defendant was upheld.
Avoiding Daubert Test Requirement Pitfalls
As illustrated by these cases, an expert’s failure to validate a liability theory with support from a test or experiment may prove fatal. Preclusion may cause an entire case or valuable liability claims to be dismissed, particularly if the expert’s testimony is necessary to the party’s burden of proof. As a practical matter, your expert should consider testing to validate and support the underlying liability theories or defenses, depending on which side the expert sits. If a test cannot be conducted, consider whether your expert can identify any tests performed and published by peers that support his or her theory or other factors that lend the indicia of reliability. Although not always determinative, the failure to support a theory with testing may be a sufficient hook, under certain circumstances, for a court to rely upon in denying admission of an expert’s testimony.
Should you have any questions on Daubert issues that you face, please contact any of the authors. If you are interested in an in-house client seminar on successfully navigating the Daubert hurdles, please contact CM partner Dean Rauchwerger (drauchwerger@clausen.com).
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