daubert challenges to expert witnesses in mass tort litigation · brief history of law 13 1923:...
TRANSCRIPT
Daubert Challenges to Expert Witnesses in Mass Tort Litigation
January 24, 2018
Roger Denning
Technology in Mass Tort Cases
2
Graphical Explanation of Important Principles
3
Timeline of Events through Expert’s Eyes
4
Scorecard of Experts
5
For Fresenius For PlaintiffsDr. Glenn Chertow Dr. Joseph Akar
Dr. Brian Duffy Dr. Julian Aroesty
Stanley Frinak Dr. Bruce Barkalow
Dr. John Gennari Dr. Thomas Barocci
Jeff Gibbs Dr. Steven Borkan
Dr. Kamyar Kalantar Dr. Clark Colton
Dr. Robert Kossmann Dr. Zayd Eldadah
Dr. Herbert Lin Dr. Derek Fine
Ben Lipps Dr. Michael Freeman
Dr. Frank Maddux Dr. Burt Gertsman
Dr. Peter McCullough Dr. David Goldfarb
Norma Ofsthun Dr. Richard Goldstein
Dr. Joseph Pulliam Dr. Nicholas Jewell
Dr. Patrick Pun Dr. Jeffrey Kraut
Dr. Arthur Rosenthal Dr. Joseph Miles
Dr. John Sargent Dr. Peggy Pence
Dr. Marc Shalek George Samaras
Dr. Sergio Waxman Dr. Arthur Schwartzbard
Dr. Lee Jen Wei Timothy Ulatowski
Dr. James Zazra Dr. Sushrut Waikar
Dr. Douglas Zipes
Dr. Andrew Zydney
Types of Experts:
General Causation Nephrologist
General Causation Cardiologist
Epidemiologist
Statistician
Machine Engineer
Chemical Engineer
Regulatory Expert
Specific Causation Nephrologist
Specific Causation Cardiologist
Dangers of Unfettered Expert Witness Testimony
6
"Expert evidence can be both powerful
and quite misleading because of the
difficulty in evaluating it.”
Daubert v. Merrell Dow Pharms., Inc.
509 U.S. 579, at 595
7
• Overview of Rule 702 and Daubert standard
• Case Study
• GranuFlo product liability litigation
• Conventional Daubert challenge
• Unconventional Daubert challenge
Outline
8
• Overview of Rule 702 and Daubert standard
• Case Study
• GranuFlo product liability litigation
• Conventional Daubert challenge
• Unconventional Daubert challenge
Outline
“I don’t have that readily at my disposal.”
9
Pop Quiz
10
Brief History of Law
11
1923: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
“Just when a scientific principle or discovery crosses the line
between the experimental and demonstrable stages is difficult to
define. Somewhere in this twilight zone the evidential force of the
principle must be recognized, and while the courts will go a long
way in admitting experimental testimony deduced from a well-
recognized scientific principle or discovery, the thing from which
the deduction is made must be sufficiently established to have
gained general acceptance in the particular field in which it
belongs.”
Brief History of Law
12
1923: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
1972: Federal Rules of Evidence adopted by order of Supreme Court
Rule 702: "If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an
opinion or otherwise."
Brief History of Law
13
1923: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
1972: Federal Rules of Evidence adopted by order of Supreme Court
1993: Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)
FRE Rule 702 supercedes Frye test
Judge must act as gatekeeper; issues of reliability are not just
questions of weight for the jury to consider
Set out factors to consider when addressing expert testimony
Brief History of Law
14
1923: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
1972: Federal Rules of Evidence adopted by order of Supreme Court
1993: Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)
1997: General Electric v. Joiner, 522 U.S. 136 (1997)
Judge may exclude expert testimony when there are gaps between
expert’s conclusion and the evidence relied upon
Abuse of discretion standard applies
Brief History of Law
15
1923: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
1972: Federal Rules of Evidence adopted by order of Supreme Court
1993: Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)
1997: General Electric v. Joiner, 522 U.S. 136 (1997)
Gatekeeping function of Daubert applies to all expert testimony
1999: Kumho Tire v. Carmichael, 526 U.S. 137 (1999)
Brief History of Law
16
1923: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
1972: Federal Rules of Evidence adopted by order of Supreme Court
1993: Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)
1997: General Electric v. Joiner, 522 U.S. 136 (1997)
1999: Kumho Tire v. Carmichael, 526 U.S. 137 (1999)
2000: FRE Rule 702 amended to codify Daubert
Brief History of Law
17
1923: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
1972: Federal Rules of Evidence adopted by order of Supreme Court
1993: Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)
1997: General Electric v. Joiner, 522 U.S. 136 (1997)
1999: Kumho Tire v. Carmichael, 526 U.S. 137 (1999)
2000: FRE Rule 702 amended to codify Daubert
2011: FRE Rule 702 amended again for clarity
Rule 702 of the Federal Rules of Evidence
18
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Daubert v. Frye
19
Daubert
Frye
Hybrid
Daubert v. Frye
20
Daubert was initially seen as lowering the standard for
admissibility compared to Frye.
“The drafting history makes no mention of Frye, and a
rigid ‘general acceptance’ requirement would be at
odds with the ‘liberal thrust’ of the Federal Rules and
their ‘general approach of relaxing the traditional
barriers to ‘opinion' testimony.’”Daubert v. Merrell Dow Pharms., Inc.
509 U.S. 579, at 595
In practice, many see Daubert as being stricter than Frye,
though it is difficult to quantify any difference in result.
Three Prongs of Daubert Analysis
21
Daubert and Rule 702 require expert testimony be:
• Qualified
• Helpful
• Reliable
First Prong: Expert Must Be Qualified
22
The expert must be adequately “qualified” by virtue of
“knowledge, skill, experience, training, or education” that
is sufficiently related to the particular subjects on which
the expert seeks to offer opinions.
23
The “Mona Lisa Vito Test”
Second Prong: Expert Testimony Must Be Helpful
24
The expert’s opinion must “help the trier of fact to
understand the evidence or to determine a fact in issue.”
The expert’s testimony must offer knowledge beyond the
understanding of the average juror.
“Having an expert witness simply summarize a document (which
is just as easily summarized by a jury) with a tilt favoring a
litigant, without more, does not amount to expert testimony.”
In re Prempro Prods. Liab. Litig.,
554 F. Supp. 2d at 886- 87, aff’d, 586 F.3d 547.
An expert may not offer an opinion concerning a legal
question—e.g., negligence—because doing such would
invade the province of the jury.
Third Prong: Expert Testimony Must Be Reliable
25
The trial judge must act as a gatekeeper, to “ensure that
an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.”
The burden rests with the proponent of the expert
testimony that the “expert’s conclusion has been arrived
at in a scientifically sound and methodologically reliable
fashion.”
Latin Phrase of the Day
26
“He himself said it”
A statement that, while unsupported and unproven,
may carry some weight based solely on the authority
or standing of the person or court that issued it.
Expert Testimony Must Be Reliable
27
Expert testimony is admissible only if:
(1) the testimony is based on sufficient facts or
data
(2) the testimony is the product of reliable
principles and methods
(3) the witness has applied the principles and
methods reliably to the facts of the case
- Has the technique been tested?
- Subjected to peer review or publication?
- What is the known or potential rate of error?
- Is it accepted within the relevant discipline?
28
• Overview of Rule 702 and Daubert standard
• Case Study
• GranuFlo product liability litigation
• Conventional Daubert challenge
• Unconventional Daubert challenge
Outline
29
Granuflo Product Liability Litigation
Over 12,000 wrongful death actions
MDL and various state courts
30
Kidneys Help Maintain Neutral pH
31
Dialyzer Is Like an Artificial Kidney
32
Dialysis in Process
33
Diffusion Across Dialysis Membrane
34
Bicarbonate in the Dialysis Fluid
35
Bicarbonate Diffuses from Dialysate to Patient
Serum Bicarbonate SawtoothS
eru
m B
ica
rb
22
24
26
28
30
32
20
34
36
38
40
42
44
44
hours
44
hours
68 hours
Prescription
Acetate Diffusion and Metabolism
Plaintiffs’ Theory: Higher Serum Bicarbonate
Plaintiffs’ Theory: High Bicarb Leads to Death
40
• Overview of Rule 702 and Daubert standard
• Case Study
• GranuFlo product liability litigation
• Conventional Daubert challenge
• Unconventional Daubert challenge
Outline
Conventional Attack on Expert Testimony
41
Mathematical Model of Kidney Dialysis
42
Unpublished Model Was Wrong
43
Model Did Not Match Real-World Data
44
Model Did Not Match Real-World Data
45
Conventional Attack on Expert Testimony
46
47
• Overview of Rule 702 and Daubert standard
• Case Study
• GranuFlo product liability litigation
• Conventional Daubert challenge
• Unconventional Daubert challenge
Outline
Internal Memo from Fresenius CMO
48
Memo Described Increased Risk of Death
49
Experts Relied on Memo
50
Memo Was Flawed
51
Memo Was Flawed
52
Memo Was Flawed
53
Memo Was Flawed
54
Memo Was Flawed
55
Unconventional Attacks on Expert Testimony
56
Results of Successful Daubert Motions
57
You are prepared!
58
