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Research & Planning Consultants provides economic damages analysis in personal injury, healthcare and commercial litigation - Loss of Earning Capacity, Life Care Planning, Vocational Evaluation and Business Valuation.
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| DRI Resources |
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Seminar
DRI Publications
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The Daubert Compendium
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| From the Editor |
Daubert Challenges During Class Certification
by Patrick J. Kenny
 One area that continues to cause confusion with respect to expert witnesses is the role (if any) of a Daubert analysis at the certification phase of a class action lawsuit. The confusion arises from the competing obligations imposed on district courts. On one hand, Rule 23(c)(1)(A) requires district courts to address certification questions "at an early practicable time," Fed. R. Civ. P. 23(c)(1)(C), which can occur early in, if not before, merits discovery in a case. On the other hand, "actual, not presumed, conformance with Rule 23(a) remains, however, indispensable" to a party's class certification motion. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982). Thus district courts often find themselves confronted with class certification motions early in litigation that are premised on or opposed by expert opinion testimony that then becomes the subject of Daubert challenges.
[FULL STORY]
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| Circuit Reports |
"Dig Deep with DRI's Expert Witness Database"
by C. Meade Hartfield
 Experts. They are a part of every litigator's life. You research them. You hire them. You cross-examine them. You spend a great deal of time learning everything you can about them. Are they credible? Are they experienced? Are they the right fit for your case? Whether you are meticulous in your search for information, or you just need a quick overview to narrow your options, DRI can help you. By providing an accessible, efficient, and expansive expert witness database, DRI can streamline your expert research efforts. With a few clicks, you can search and download contact information and documents for over 65,000 plaintiff and defense experts.
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First Circuit Report: When is the Factual Foundation Sufficient to Render the Expert's Opinion Reliable?
by Jeanne Herrick
 Whether a sufficient factual foundation existed to support the expert's opinion was addressed in four recent cases.In United States v. 33.92356 Acres of Land, 585 F.3d 1 (1st Cir. 2009), the First Circuit upheld an order excluding expert testimony in a condemnation case because the proffered expert's "opinion was not supported by any documentation and [was] contrary to the existing facts."
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Second Circuit Report: Opinion from Expert Without Relevant Experience and Qualifications is Rejected
by Jessica Saunders Eichel
 In Fernandez v. Central Mine Equipment Company, 2009 WL 4019259 (E.D.N.Y. Nov. 23, 2009), the plaintiff, a driller's helper, alleged claims of strict liability and negligence against manufacturer Central Mine Equipment Company ("CME"), stemming from an injury that occurred while he was assisting in the operation of the CME 55, a drilling rig used for soil penetration testing. The CME 55 is a well-drilling unit equipped with, among other things, a hydraulic hoist, a twenty-two foot mast and a manually operated cathead. A cathead is a rotating steel drum around which rope is wrapped, with one end of the rope held by the drill operator and the other end extending over the tip of the mast and attached to either pipes, drill bits, or hammers.
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Third Circuit Report: Exclusion of Expert Testimony on Damages Based on Unreliability Leads to Summary Judgment in Antitrust Case
by Mark D. Jicka and Lindy D. Brown
 In this update, we examine a recent Daubert opinion issued by the Third Circuit Court of Appeals and its lessons for attorneys involved in the use or challenge of expert testimony. The case, Mercedes-Benz USA, Inc. v. Coast Automotive Group, Ltd., 2010 U.S. App. LEXIS 1544 (3d Cir. Jan. 25, 2010) (unpublished opinion), involves the appeal of a district court's decision to exclude two expert witnesses and to grant summary judgment to plaintiff on certain defendants' counterclaims.
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Fifth Circuit Report: Reconstruction Expert's Opinion Grounded Where Based on Faulty Chain of Custody for Lab Results
by Scott B. Novak
 Swanstrom v. Teledyne Continental Motors, Inc., 2009 ALA. LEXIS 274 (Ala. Nov. 20, 2009)This wrongful death case emanates out of a single engine aircraft crash in which John E. Swanstrom, Jr. ("Swanstrom") was fatally injured. Swanstrom was killed when the aircraft he was piloting crashed in Angel Fire, New Mexico on May 28, 2002. Mr. Swanstrom was the pilot of the aircraft and the sole occupant. The aircraft was a single engine model Cirrus SR-20 aircraft, which included a Teledyne IO-360-ES-piston driven engine with a Teledyne engine driven fuel pump.
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Sixth Circuit Report: Expert in NASCAR Antitrust Case Should Have Considered Other Forms of Entertainment in Defining Relevant Market
by Eric Hudson
 This issue focuses on the Sixth Circuit Court of Appeals decision in Kentucky Speedway, LLC v. NASCAR, 588 F.3d 908 (6th Cir. 2009). Kentucky Speedway provides a detailed analysis of the admissibility of expert testimony in a complex antitrust case where the plaintiff's experts, in attempting to define the relevant marketplace as a necessary element of plaintiff's claims, failed to survive Daubert challenges. Also addressed are an opinion addressing an expert's failure to inspect the product and materials at issue, see Wendorf v. JLG Industries, 2010 WL 148255 (E.D. Mich. Jan. 11, 2010), as well as an opinion addressing a valuation expert's "inflated" opinions regarding land values. See Midwestern Gas Transmission Co. v. 3.90 Acres in Sumner County, 2009 WL 5217000 (M.D. Tenn. Dec. 30, 2009).
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Seventh Circuit Report: Recent Decisions Reaffirm the Wide Discretion Vested in District Courts
by Patrick J. Kenny
A couple of the more interesting recent Daubert decisions in the Seventh Circuit were handed down by district courts. In Allen v. American Honda Motor Co. Inc., 2009 WL 4823894 (N.D. Ill. Dec. 8, 2009), discussed in the From the Editor column, the district court refused to strike the testimony of a purported expert witness whose methodology clearly was lacking. In Flagstar Bank FSB v. Freestar Bank, N.A., 2009 WL 3837145 (C.D. Ill. Nov. 13, 2009), the court struck an expert witness in circumstances making clear that an otherwise qualified expert witness using otherwise reliable methodologies still must articulate those methodologies in such a manner that they can be understood by the court and tested by the opponent.
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Eighth Circuit Report: Motion to Supplement Expert Report Denied on Multiple Grounds; Expert with no Experience with the Product at Issue Allowed to Testify
by John W. Rourke and Chris A. Michener
 In a case involving a popular men's product, In re Viagra Products Liability Litigation, 658 F. Supp. 2d 936 (D. Minn. 2009), consumers filed product liability actions alleging that the drug caused a vision-loss disorder called non-arteritic anterior ischemic optic neuropathy (NAION) due to diminished blood flow to frontal portion of optic nerve. The actions were consolidated for pretrial proceedings. The drug manufacturer moved to exclude testimony of the consumers' expert, while the consumers moved for leave to file the expert's supplemental report.
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Ninth Circuit Summary: Safety Engineer/Certified Safety Professional Expert Not Qualified to Opine on Product Warnings; Pediatric-Anesthesiologist's Qualifications Sufficient to Support Opinion Not Backed by Articles or Studies
by Arissa Peterson and Jennifer Gannon Crisera
 In Salinas v. Amteck of Kentucky, Inc., 2010 WL 334886 (N.D. Cal. Jan. 22, 2010), two workers were injured while using a scissor lift to pull a bundle of cables through a conduit suspended 22 feet overhead. The weight and pull of the cables horizontally upon the lift caused the lift to tip over, seriously injuring one worker and fatally injuring the other.
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Tenth Circuit Report: Court Excludes Expert Testimony on Insurance Claims Handling Finding the Jury Capable of Comparing Against Industry Standards
by Darren K. Sharp
 In August 2009, the Tenth Circuit decided North American Specialty Insurance Company v. Britt Paulk Insurance Agency, Inc., 579 F.3d 1106 (10th Cir. 2009). After North American Specialty Insurance Company settled an underlying bad faith claim brought by one of its insureds, it sued its general and limited insurance agents for negligence and breach of contract, claiming their poor claims-handling forced it to settle the bad faith suit. Id. One of the issues on appeal was whether the district court properly excluded expert testimony regarding whether the claims handling met insurance industry standards. See id. at 1112.
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Eleventh Circuit Report: Survey and Sinkholes-Scarce Daubert Opinions in the Eleventh Circuit
by W. M. Bains Fleming, III
 In recent months, the Eleventh Circuit has not examined a Daubert issue on appeal. However, the district courts of the Eleventh Circuit have been busy making Daubert decisions at the trial level. Two of the more interesting cases in the circuit addressed expert challenges in a Lanham Act trademark infringement action and another case in which a sinkhole expert was challenged.
[FULL STORY]
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