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January 4, 2008
The Dangers Of Daubert: Tenth Circuit Reverses District Judge's Decision Excluding Expert Evidence In Case Against Whirlpool
On the evening of February 16, 2000, Lorray McCoy loaded her Whirlpool dishwasher before going to bed. As she was falling asleep, she smelled smoke and discovered a fire in her house, which she claimed emanated from the dishwasher. While she was able to escape, her daughter Shelley died in the fire, which also destroyed the McCoy residence. Lorray, her husband James, and their insurer, American National Property and Casualty Company, thereafter sued Whirlpool for wrongful death and property loss based upon a strict liability theory. While the first trial against Whirlpool resulted in a deadlocked jury, the second trial ended with the jury awarding the plaintiffs $1,712,914 in damages.
This verdict was in large part based upon the expert testimony provided by the plaintiffs' expert witness, James T. Martin, an electrical engineer with experience in investigating fires involving dishwashers. Martin testified that if the house fire originated in an electrical fire in the dishwasher's latch door switch assembly, then it was his opinion that the specific cause of the fire was excessive resistance heating occurring in the current flow path caused by a manufactiring defect in the connection between the flag terminal and either the conductor or microswitch.
Martin's testimony conflicted with the testimony of Whirlpool's expert witness, Ernest Grunewald, a Whirlpool engineer. Grunewald had testified that the fire could not have originated in the "connection area" because the black microswitches in the McCoy's dishwasher's door latch assembly would have acted as thermal fuses to cut off electrictity and thus halt excessive resistance heating in this area before a fire could ignite. Whirlpool claimed that Martin's testimony was unreliable and inadmissible under Federal Rule of Evidence 702 because he failed to adequately address Grunewald's testimony. The trial judge rejected this argument, finding that the scientific methodology utilized by Martin, such as relying upon electrical engineering principles, a review of thousands of Whirlpool documents, and the results of tests, was customary and generally accepted in the electrical engineering field.
After the jury entered its verdict, however, the trial judge reversed himself and found that Martin's testimony was not sufficiently reliable to be admitted under Rule 702. The plaintiffs then appealed to the Tenth Circuit Court of Appeals, which reversed the trial judge's opinion and laid bare the potential problems with the ambiguous test for reliability laid out in Federal Rule of Evidence 702.
For years, both federal and state court relied upon the opinion in Frye v. United States in determining whether expert evidence was admissible. This test, which some state courts still apply, asked judges to consider whether the proferred expert evidence was based upon a test or principle that had general acceptance in the relevant scientific community. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), however, the Supreme Court found that the Frye test was inapplicable in cases covered by the federal rules of evidence and instead adopted a test that has since been incorporated in Federal Rule of Evidence 702. The Supreme Court found that judges should act as "gatekeepers" and determine whether expert evidence is relevant and the product of a reliable technique or test. In Daubert, the Supreme Court laid out five "general observations" about how judges should determine whether a test or technique is reliable such as, not only whether the test has general acceptance in the relevant scientific community, but also whether it has been subjected to peer review or publication.
The Supreme Court, however, did not state that these "general observations" were definitive or exhaustive, which has led federal courts in subsequent cases to apply a variety of tests, promptong several commentators to claim that judges are being too proactive and excluding expert evidence despite lacking the sceintific/medical/ technical knowledge necessary to make such decisions. See, e.g., Susan Haack, An Epistemologist in the Bramble-Bush: At the Supreme Court with Mr. Joiner, 26 Journal of Health, Politics, Policy & Law 217 (2001). While I think that Daubert is more of a mixed bag, the trial judge's opinion in the Whirlpool case seems to be a case to fuel the fire of the critics.
If the trial judge were using the Frye test, he would have found Martin's testimony admissible because he found that the scientific methodology that Martin used was customary and generally accepted in the electrical engineering field. As the Tenth Circuit noted, however, after the jury's verdict, the trial judge retroactively determined that Martin's testimony was unreliable becuase he found Grunewald's testimony to be credible and persuasive and thus found that Martn's failure to rebut Grunewald's testimony rendered his expert testimony unreliable and inadmissible. Ciring to other cases, the Tenth Circuit concluded that the trial judge exceed his powers because judges are solely supposed to determine whether expert evidence is reliable, not to exclude expert evidence because it believes that one expert is more credible than another witness because such action would supplant the adversary system and the role of the jury. I agree with the Tenth CIrcuit's decision and worry that trial judges are too often putting on their amateur sceintists' hats and improperly deciding issues instead of regulating the flow of information to juries.
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This case is also an illustration of the general problem of reversing an evidence ruling after a jury rules.
If the judge had disallowed this evidence in a motion in limine (after all, the expert report had to be disclosed well in advance and the witness was almost certainly deposed in advance) or even at trial, the Plaintiff might have been able to marshal alternative evidence to the same effect. But, thinking the Plaintiff had that evidence in, the Plaintiff didn't try to offer additional duplicative evidence. Indeed, if the Plaintiff had tried, the evidence might have been disallowed precisely because it was duplicative.
Posted by: ohwilleke | Jan 4, 2008 11:04:45 AM