Non-Traditional Uses of Daubert: A Review of Recent Case Law

16 intellectual property. 469 f.3d 1039 (fed. cir. 2006), denying reh'g and reh'g en banc of 457 f.3d 1293 (fed. cir. 2006), 47 ment, and professional liability. mr. herling has represented a member of the firm's executive committee. mr. wil- mony in a federal trial.3 industry companies, including overseeing the defense of over bruce schaeffer followed all federal and state cases involving the admissibility of expert mr. williams is board certified by the texas board in another case, plaintiff sued the city of memphis for alleged discriminatory proce- requesting sanctions for filing a meritless lawsuit, the plaintiff sought to introduce affidavits property litigation section. while at shook, hardy witnesses to testify on issues of infringement and invalidity, but that such expert opinions 14 fitzgerald, 80 fed. app'x 857 (4th cir. 2003) (rejecting testimony of expert on methodology and behavior officer's expert testimony regarding the accuracy of standard field sobriety tests but allowing lay opinion 34 opinion consisted almost entirely of the cell biologist's interpretation of promotional infor- of error.43 chronic pain patients. although daubert analysis has not yet expanded to include patent claims construc- failed to support his methodology.53 fdcc quarterly/fall 2009 and sought to introduce testimony from an expert on discriminatory practices.12 businesses in complex business and intellectual property argument that daubert applies only to scientific testimony. daubert challenges eventually is not a widely accepted field of expertise.34 a matter should be heard en banc could have an impact on daubert rulings. in her dissent, leged they were denied the opportunity to bid on gasoline stations due to racial discrimination e. commercial litigation id. at 604-05. 2 music, arguing that it leads to violent incidents among the skateboarding patrons.48 id. at 1355-56. 55 medical device cases, as well as the representation of 58 mar. 31, 2004). the invention rather than formalistic requirements in a patent application.74 fdcc quarterly/fall 2009 in affirming the federal circuit's decision in mark- liams has over the last 20 years emphasized the defense id. at *13-14. 37 become the vice president of laboratory operations percentage of the city's construction contracts be awarded to minority and women-owned credit.32 the expert's four decades of banking experience met daubert reliability standards 60 expert for some areas of his testimony, the ecologist's report was still reliable and relevant.41 sanner v. bd. of trade, no. 89-c-8467, 2001 u.s. dist. lexis 15458, at *2 (n.d. ill. sept. 27, 2001). 3,000 product liability cases. in addition, mr. herling counsels id. at 747�48 (stating that law reviews are not subject to "peer review" scrutiny). to patent litigation. impact on the use of daubert challenges to damage experts' testimony. that trial judges should admit extrinsic evidence when it meets the daubert thresholds of insurance company's expert on "key pathway analysis."22 citing a prior decision in united states v. han- 526 u.s. 137 (1999). 11 inc., the district court granted the defendant's motion for summary judgment and found no cochrane v. schneider nat'l carriers, inc., 980 f. supp. 374, 379 (d. kan. 1997) (arguing that a family united states v. plaza, 179 f. supp. 2d 492, 517-18 (e.d. pa. 2002). tiff.19 frequently require an expert with knowledge in a highly specific area. for example, in st. mination of disability payments.27 daubert standards.29 8 id. at 1355. ultimately, judge stasior, 19 f. supp. 2d at 849-51. judge newman cited daubert to support her assertion that "[t]he federal circuit's ruling 54 case from the initial arrest to post-conviction relief.14 court that it has done in cases involving daubert challenges. found their way into other areas of litigation. this article explores the expansion of daubert non-traditional uses of daubert: the rationale was to provide heckman. mr. herling focuses his trial practice on product introduction trial court's decision refusing to allow expert testimony under daubert, the federal circuit gene m. williams tory specializing in therapeutic drug monitoring of although historically daubert challenges occurred in products liability litigation, many conclusion standard for admissibility of expert testimony and 25 study," the city's fundamental rationale for passage of the mwbe.10 id. *12-13. d. insurance law on a law degree and publication in student-edited law reviews.8 75 non-traditional uses of daubert amgen, 469 f.3d at 1043 (newman, j., dissenting). the federal circuit has addressed daubert challenges to expert testimony on damages fdcc quarterly/fall 2009 39 expert's forty years of experience in the banking industry and knowledge about letters of 509 u.s. 579, 588 (1993). id. at 603. infringement case regarding a process for collecting umbilical blood at birth for use in stem analyst was qualified to address the issue of valuation and give expert testimony relating to submitted by the authors on behalf of the fdcc intellectual property section. opinions on the market effects in the short term were admissible because they were based on 59 each of these areas, as well as some unusual uses of daubert. 72 of legal specialization in personal injury trial law and allapattah servs. v. exxon corp., 61 f. supp. 2d 1335, 1353-54 (s.d. fla. 1999). pharmaceutical, medical device, and dietary supplement in a separate case, plaintiff's expert testimony satisfied daubert the in a cercla("comprehensive environmental response, compensation and liability 27 comprised the vast majority of cases involving daubert challenges to admissibility of sci- fdcc quarterly/fall 2009 (n.d. ill. 1998). daubert involved a product liability claim, and since 1993, product liability suits have litigants have also utilized daubert to challenge expert witnesses in insurance cases see dukes v. ill. cent. r.r., 934 f. supp. 939 (n.d. ill. 1996); stasior v. amtrak, 19 f. supp. 2d 835 relevance and reliability, and that "factual findings with respect to evidence relevant to claim id. at 1481. did not allow the testimony, it applied a daubert analysis to the social scientist's affidavit. but a number of dissenting and concurring opinions underscored the conflict among the whether to admit scientific evidence.4 held that federal rule of evidence 702 provides the standard for admitting scientific testi- must meet the rigors of daubert. moreover, when examining appellate cases, the federal h. unusual uses of daubert amgen, 469 f.3d at 1041 (newman, j. dissenting). judge newman argued that the panel majority misconstrued a claim term, "a therapeutically in part because the expert consulted only one book for his analysis, offered no method for the houston office of shook, hardy & bacon, l.l.p. and 77 daubert challenges have also occurred in commercial litigation. for example, in first daubert challenges also frequently occur in the antitrust area of commercial litigation. law. the following section examines representative samples of daubert challenges from act") action, the plaintiffs sought to exclude the defendant's expert testimony on isotope the defense expert concluded based on the expert's experience in the field of roofing and roof damage.25 of damages for a lost life. in cochrane v. schneider national carriers, inc., a deceased's although the expert's methodology was an accepted methodology for determining whether she explained daniel j. herling cicero v. borg-warner auto., inc., 163 f. supp. 2d 743, 747 (e.d. mich. 1999). 71 inherent in claim construction should follow the daubert criteria.75 c. employment law 42 in challenges to the admissibility of expert financial testimony: 2005-2008, attorney in harvey, the plaintiff sought to exclude the similarities between the plaintiff's and the defendant's processes, and the defendant chal- key, the greenberg court stated that when an expert's testimony is the "kind of testimony in that case, the federal circuit determined that a cellular biologist's expert united states v. plaza, 188 f. supp. 2d 549, 576 (e.d. pa. 2002). the following are all examples of recent daubert challenges in the criminal context: united states. v. id. involves daubert challenges to expert witness testimony in such cases. a review of recent failed to explain the relevance of this material or how it was used.62 markman hearings play a key and crucial role in the outcome of patent litigation. as there is no interme- 43 has headed national trial teams. federal circuit decisions addressing daubert challenges and the use of expert witnesses jeffery t. wise frye v. united states, 293 f. 1013 (d.c. cir. 1923). expert's testimony, finding it met the daubert criteria even though the social sciences are states v. bonds, 12 f.3d 540 (6th cir. 1993) (admitting expert testimony concerning dna match between & bacon, mr. wise's practice focused on patent in- non-traditional uses of daubert nia and the united states. he acts as counsel for international did not abuse its discretion in refusing to apply daubert to the plaintiff's insurance industry 44 in two separate fela ("federal employers liability act") actions, an illinois court c. claims construction/markman hearings 19 specialized knowledge, although not in a "hard science," met the standards set by the court.26 32 that fingerprint analysis lacks a known "error rate" and uniform "standards" as required id. at 1221. 41 on a motion to reconsider, judge pollack reversed his prior ruling and non-traditional uses of daubert 38 effective amount."73 clients on regulatory matters and has advised in the selection app'x 396, 399 (6th cir. ohio 2001). see id. at 1043. only forty-three percent of challenged damages experts to testify.50 daubert challenges are common in employment discrimination suits.this use of daubert 30 based on lack of reliability in the expert's methods.37 mejdrech v. lockformer co., no. 01-c-6107, 2003 u.s. dist. lexis 15587, at *2-3 (n.d. ill. sept. 4, the city challenged the plaintiff's expert testimony under daubert, arguing that fdcc quarterly/fall 2009 517 u.s. at 389). and supervision of local counsel and lead trial attorneys. the daubert decision created a new standard for admissibility of expert testimony and the methodology or theory behind it," a court is not required to assess the testimony under member provides counseling services to other family members in addition to more traditional services such not damaged, which contradicted plaintiff's allegations of auto theft.23 78 gist rather than a trained hydrologist, he had not published or tested his hypothesis, and his a review of these cases demonstrates that mr. schaeffer's numbers appear to be rea- cell research.60 id. 66 expert testimony on market manipulation was admissible.35 a tested scientific process, but longer range projections failed to satisfy daubert and were 69 in patent cases. for example, in monsanto co. v. mcfarling, the court held that a valuation methodology, although based partially on peer-reviewed science, was not actually tested or id. at 380. tioners and courts have confronted daubert challenges in an increasing number of practice 22 hypothesis had not been subjected to peer review.40 v. the board of trade of chicago, for example, the court considered whether the plaintiff's administration ("sba") to enforce the sba's guarantee on a defaulted loan.30 65 248 f. app'x 199, 201 (fed. cir. 2007). reveals a "mixed bag" of results. id. again, reviewing the no intention of publishing his methodology, nor had he subjected it to peer review.20 first tenn. bank nat'l ass'n v. barreto, 268 f.3d 319, 321 (6th cir. 2001). "hard sciences" (e.g., engineering, chemistry, and medicine) to experts in the "social sci- id. at 322-33. the plaintiff's expert witness under daubert, arguing that the expert was a marshland ecolo- held that daubert applies when assessing the reliability of their testimony. in liquid dy- entific testimony. however, in kumho tire v. carmichael,5 the court allowed the expert witnesses are often called to testify in patent infringement cases; courts have id. views regarding markman-cybor have been divergent businesses.9 one in which the federal circuit has historically not provided the deference to the district trial court's daubert analysis, the federal circuit upheld the trial court's determination. expert testimony and established several criteria for judges to consider when evaluating and testimony did not meet standards of relevance and reliability.64 jan 12, 2004). evidence of age discrimination against the plaintiff.6 non-traditional uses of daubert b. criminal law newman suggested that the federal court's review of findings on technology-based facts scientific methodology and based his conclusion on observation and interview of the plain- daniel j. herling is a partner in the law firm of keller and court precluded expert testimony concerning lost profit damages. 54 iv. 72 5 diate appeal, markman has also added an entirely new level of lawyering, costs, delay, and an uncertainty and teen violence.47 potential customers and investors.61 31 claim construction have regularly included dissents.72 expanded its application beyond the products liability arena. in the last fifteen years, practi- ability to undertake a de novo review in claims construction.66 tort claims and a claim for infringement of its patent. 52 23 id. at 405-06. 76 491 f.3d 1342, 1347 (fed. cir. 2007). competitor for patent infringement.56 reaching his conclusions, and used his own determinations of the parties' credibility.13 the affidavits in part because one expert, a law professor, could not claim expertise based 10 daubert challenges can take place during a class action proceeding as well. in allapattah 20 gene m. williams is currently the managing partner of in that case, after reviewing the counsel for several major pharmaceutical concerns and 45 after sev- mation and other materials in which the competitor described its business operations for interpretation should be treated, on appeal, like any other finding of the trial court."77 other areas of patent law relating to damages, claims of infringement, and invalidity. a reasonable royalty as damages for patent infringement.51 33 79 35 on the defendant's subsequent motion dag enters. v. exxon mobil corp., no. 00-182, 2004 u.s. dist. lexis 27392, at *2-3 (d.d.c. id. at 509-15. on appeal, the ninth circuit held that the district court cicero v. borg-warner auto., inc., 75 f. supp. 2d 695, 710 (e.d. mich. 1999). liability, with an emphasis on pharmaceuticals and medical eral trips between the district court and the federal circuit, the claims construction was the markman v. westview instruments, inc. decision established the federal circuit's that the key pathway (the key mechanism for unlocking a door) on the plaintiff's car was merely speculation.36 id. at 203. there was already general acceptance of the expert's methodology in the relevant scientific non-traditional uses of daubert b. claim of infringement for capital toxicology, llc, a drug testing labora- fed. r. evid. 702; daubert, 509 u.s. at 589-90. tennessee bank national ass'n v. barreto, a bank association sued the small business the united id. at 1220. place, but attorneys make daubert challenges in many other areas as well. for example, in court concluded that the testimony was unreliable and refused to admit it under daubert, the markman-cybor doctrine states that claim construction is a pure issue of law and id. a. discrimination litigation the plaza away from the jury (called markman hearings) to determine the scope of a patent's claims.69 "matched" those of the perpetrator.15 46 wrongful death cases, litigants often need experts to testify about the appropriate measure that extrinsic evidence must be restricted unless there is a facial ambiguity in the meaning judge pollack based his ruling on daubert, finding lexis 6345 (n.d. ill. apr. 2, 2002) (allowing plaintiff's expert's testimony on eyewitness identification theory has been subject to peer review or publication; whether there is a known rate of error; and whether of courts admitting fingerprint evidence. 63 meaning of patent terms."68 fringement litigation in the telecommunications and the defendant challenged expert testimony is often useful in environmental law cases because the controversies 28 77 greenberg v. paul revere life insurance co. involved allegations of "bad faith" ter- 57 surviving parents attempted to introduce expert testimony that the loss of their son was 49 of daubert involves recent challenges to the admissibility of latent print (i.e., fingerprint) devices, commercial litigation, and antitrust. this includes 53 dukes, 934 f. supp. at 947-48. texas lawyer and texas monthly magazine in each year the rankings have been pub- 74 429 f.3d 1344, 1348 (fed. cir. 2005). daubert, 509 u.s. at 593-94 (discussing whether the scientific theory has been tested; whether the the court ruled that the expert's testimony was inadmissible because it did not 56 the expert's methodology met the daubert criteria for reliability because of his extensive in the landmark 1993 decision daubert v. merrell dow pharmaceuticals,1 & bacon's houston office in the firm's intellectual one of the more noteworthy applications of two experts in employment law; those experts asserted that the plaintiff's case was rea- challenged the plaintiff's expert testimony concerning the link between "gangster rap" music petition for cert. filed, no. 06-1291, 2007 wl 906697 (u.s. mar. 22, 2007). 15 civil trial law. he is a member in the american board of trial advocates and listed as 1 73 40 the beyond the area of products liability; specifically, part ii examines the use of daubert in a judges. subsequently, a petition for a writ of certiorari was filed. interestingly, this area is nia released a controversial ruling that an expert could present fingerprint match evidence the sba refused to allow testimony by plaintiffs' experts on carpal tunnel syndrome.18 the court allowed the plaintiff's expert setting into many other areas of litigation, both civil and criminal. backdrop for any claim construction and asserted that claim construction should focus on st. martin v. mobil exploration, 224 f.3d 402, 403, 405 (5th cir. 2000). she described how scientific and technological evidence serves as a moved to exclude their opponent's expert testimony on wholesale price fixing allegations 80 the court stated that fdcc quarterly/fall 2009 the court found that but could not give his ultimate opinion as to whether the fingerprints from the crime scene ultimately, the fact that a patent infringement claim is at issue does not appear to have any objects s.a., a patent holder brought an action against a competitor, asserting four business of toxic tort, medical malpractice, pharmaceutical and to testify, reasoning that even though a hydrology expert may have been a more qualified under daubert.16 jeffery t. wise is a former associate at shook, hardy lenged the expert's testimony under daubert.57 29 a plaintiff's expert introduced a model displaying the experience in the area.24 and misidentification when expert researched and published extensively on the subject). in pharmasten therapeutics, inc. v. viacell, inc., a federal court considered a patent id. at 405. id. at *3; united states v. hankey, 203 f.3d 1160, 1169 (9th cir. 2000). dures in its minority/women business enterprise (mwbe) program, which required that a additionally, in cybor, these patent infringement cases demonstrate that the federal circuit will allow expert id. official unsecured creditors comm. of valley-vulcan mold co. v. ampco-pittsburgh corp., 5 fed. 52 he discovered that challenges involving common areas where daubert challenges arise include discrimination litigation, criminal expert witnesses succeeded fifty-seven percent of the time, meaning that courts permitted plaintiff's carpal tunnel syndrome because the expert failed to support his statements with deference to the district court's claim construction. the federal circuit denied the petition, companies in both state and federal courts throughout califor- iii. 75 testimony from both parties, finding that daubert criteria were met.38 id. the district court rejected admission of within the federal circuit as federal circuit decisions regarding the standard of review in id. at *14-21. plaintiffs sought to prevent the park owner from playing "gangster rap" law, employment law, insurance law, commercial litigation, class actions, and environmental 36 17 4 narrowed to one single claim term. ultimately, a petition for rehearing en banc was filed; id. at *3-4. there the court found that the expert's novel g. environmental law ences" (e.g., sociology and psychology). for example, in cicero v. borg-warner automotive, testimony that the defendant was driving while intoxicated based on the officer's observations); united 64 the design of the expert's model as an accurate representation.58 2003). bruce schaeffer, susan ogulnick, & sarah schaeffer (2008), http://www.franchisevaluations.com/ experts in these cases often testify to market manipulation and restraint of trade. in sanner community and that a jury could consider the discrepancies of the model in its deliberation.59 meet daubert standards for reliability.44 2004). introduced expert testimony that the lender did not follow prudent lending practices.31 id. at *10. even though it had not been subject to peer review.33 case further emphasized the expansion of daubert beyond the traditional products liability identification. in united states v. plaza, judge pollack of the eastern district of pennsylva- the court further stated that similarly, in a separate case, the sixth of the claim is an unnecessary restraint on potentially useful evidence."76 expert's testimony on "claims handling."28 defendant and blood obtained from crime scene); and newsome v. mccabe, no. 96-c-7680, 2002 u.s. dist. extent of an actionable claim.65 the question of the proper standard of review in claims construction appeals.70 defects exist in silicon wafers, it could not determine whether these defects existed to the the scientific theory has been "generally accepted" as possible criteria for the judge to consider). 18 the court permitted the testimony because of child molesters as unreliable); united states. v. horn, 185 f. supp. 2d 530 (d. md. 2002) (rejecting 69 healthcare sectors. mr. wise left the firm in 2009 to tion cases, it is foreseeable that daubert challenges may soon be permitted in those cases. peer reviewed, was not accepted in its scientific community, and had a high potential rate daubert requirements.63 id. again, the federal circuit upheld the trial court's decision and 68 one of the "best lawyers in america." he has also been named a "super lawyer"by although the cicero court 71 literature, testimony of experts, and depositions of representatives of competitors, but she the defendant did not challenge the reliability of the expert's method, but instead challenged id. at 1308-09. see, e.g., phillips v. awh corp., 415 f.3d 1303, 1330-35 (fed. cir. 2005) (mayer, j., dissenting). 21 non-traditional uses of daubert 7 as laundry, yard work, etc.). the supreme court rejected the lished as well as recently being named as one of the top 100 lawyers in houston. the court found that the expert's the amgen dissent regarding whether areas. based on the courts'tendency to expand the use of daubert, litigators should be aware 74 spearman indus., inc. v. st. paul fire & marine ins. co., 138 f. supp. 2d 1088, 1097-98 (n.d. ill. 2001). illinois central railroad, the court rejected the plaintiff's expert's report on the cause of daubert and intellectual property cybor corp. v. fas techs., inc., 138 f.3d 1448, 1480 (fed. cir. 1998) (newman, j., additional views). the court ultimately allowed expert further, the expert stated that she also relied on scientific namics corp. v. vaughan co., the holder of a patented waste water disposal method sued its witness testimony. 52 f.3d 967, 970-71 (fed. cir. 1995), aff'd, 517 u.s. 370 (1996). although each patent case comes with its unique set of issues, one common issue ratios in groundwater and soil samples.42 67 finally, in dsu medical corp. v. jms co., the trial id. in a third discrimination case, dag enterprises, inc. v. exxon mobil corp., plaintiffs al- predictability and speed to patent cases.67 of its applicability to many areas of law and use it effectively to challenge opposing expert 6 whose reliability depends heavily on the knowledge and experience of the expert rather than stated that the trial court had not abused its discretion in concluding that the expert report 70 76 61 a review of recent case law as a political science professor, the expert did not qualify to critique the city's "disparity greenberg v. paul revere life ins. co., no. 02-16501, 2004 u.s. app. lexis 388, at *2-3 (9th cir. not subjected to the same rigorous peer review as the hard sciences.11 this man, the supreme court stated that "judges, not juries, are better suited to find the acquired against the defendant oil company's allegedly negligent practices.39 sonable in an employment discrimination context.7 the preceding list is merely a sample of the major areas where daubert challenges take in microstrategy inc. v. business press/2008experttest.pdf. states supreme court replaced the frye2 449 f.3d 1209, 1213 (fed. cir. 2006). ii. variety of areas of law, and part iii focuses on the expansive use of daubert in the area of in discrimination cases exemplifies the expansion of daubert challenges from experts in the sixth circuit affirmed the district court's admission of the expert testimony based on the 62 similarly, in memc electronic materials, inc. v. mitsubishi materials silicon corp, class actions, intellectual property litigation, patent infringe- although daubert does not include claims construction, its challenges are still utilized in id. daubert entrusted judges with the role of "gatekeepers" of scientific upheld the trial court's decision and precluded an entrepreneur from testifying because he cybor corp. v. fas techs., inc., 138 f.3d 1448, 1456 (fed. cir. 1998) (en banc) (quoting markman, torries v. hebert, 111 f. supp. 2d 806, 820 n. 15 (w.d. la. 2000). 471 f.3d 1293 (fed. cir. 2006). that even credibility determinations "will be subsumed within the necessarily sophisticated id. at *3. 26 the expert's sonable, and that the federal circuit gives deference to a trial court's daubert analysis.55 circuit upheld expert testimony on "solvency" in a bankruptcy case even though solvency f. class action court granted the defendant's motion to strike this testimony as unreliable.46 services v. exxon corp., at the class certification stage, both the plaintiff and the defendant 73 testimony did not satisfy a daubert analysis because it was not helpful to the jury, and the in dukes v. in a unique use of daubert, the defendant owner of a skateboarding facility successfully in that petition, counsel argued that the federal circuit panel should have afforded more a. damages experts after markman, trial court judges held separate proceedings financial testimony from 2005 through 2008.49 comparable to the loss of a "full-time guidance counselor on their household staff."45 litigation. he has acted as both national and regional 13 harvey v. allstate ins. co., no. 03-2721m1v, 2004 u.s. dist. lexis 27196, at *2 (w.d. tenn. oct. 4, regarding the likely cause of the plaintiff's carpal tunnel syndrome because the expert had similarly, in stasior v. amtrak, the court refused to allow the plaintiff's expert to testify 3 the court addressed whether an expert's testimony relating to invalidity of a patent met the (w.d. tenn. 2004). granted the government's motion to declare fingerprint evidence admissible.17 517 u.s. at 388. such as harvey v. allstate insurance co.21 9 cases demonstrate that daubert challenges nearly succeeded in uprooting over 100 years martin v. mobil exploration, the plaintiff introduced an expert in marshland ecology to testify 50 i. in amgen inc. v. hoechst marion roussel, inc., the federal circuit again encountered areas of litigation now employ daubert challenges as a matter of course. some of the more id. at 989 (mayer, j., concurring). daubert challenges in criminal cases have addressed virtually every aspect of a criminal circuit will usually give deference to the trial court's decision. w. tenn. chapter of assoc. builders & contractors, inc. v. city of memphis, 300 f. supp. 2d 600, 601 48 analysis of the whole document."71 id. at *8-10. 488 f.3d 973, 981 (fed. cir. 2007). the district 70 51 24 12 non-traditional uses of daubert