Hobnobbing with Wizards: The Court, the Expert Witness and the Gate-keeping Function

Tamar Jergensen Cerafici

Since Daubert defined the trial court's gatekeeper function, parties and their attorneys have faced a difficult task: convincing this gatekeeper that their case should be allowed through the gate. Unfortunately, counsel are precluded (by pride and the rules of professional responsibility) from sobbing about home and Kansas.

But that doesn't mean that counsel haven't tried. In Weisgram v. Marley Company, 120 S.Ct. 1011 (2000), the plaintiffs successfully introduced testimony about defects in a heater that allegedly caused a fire in a Fargo, North Dakota condominium. After a series of appeals, the Supreme Court concluded that appellate courts could shut the gate that the trial court never should have opened in the first place. Both appellate courts ignored the plaintiffs' hand-wringing claims that they should be allowed to develop different expert testimony at a new trial.

Weisgram presents an important trend in the extent of the courts' gate-keeping function. Increasingly, appellate courts have expanded their own gate-keeping discretion. With this second line of discretionary power, the environmental practitioner must ensure that her expert testimony passes muster the first time. She cannot simply rely on the appellate court's willingness to defer to the trial court. Nor, since Weisgram, can she trust the appellate court to send an erroneous ruling back for a new trial.

Weisgram and the Gatekeeper

What happens when the trial court apparently fails to adequately keep the gate? Generally, appellate courts have deferred to the discretion granted to the trial courts in Daubert. The Eighth Circuit rejected that tradition in Weisgram, asserting that junk science and experts who exceeded their own expertise could not support the plaintiffs' products liability case.

Bonnie Weisgram died in fire at her home in December 1993. Firefighters found an L-shaped sectional sofa badly damaged by fire. The back of one section was along a metal railing open to the entryway of Weisgram's home, and the second section was along the adjoining wall. To the left of the entrance, directly in front of the south entryway wall, a hole had burned through the floor of the entrance. A fifteen-year-old baseboard heater manufactured by the defendant Marley Company had been mounted on the entryway wall. Inhalation of smoke from the smoldering sofa was determined to be the cause of Weisgram's death.

Weisgram's son, Chad, sued Marley for the wrongful death of his mother. State Farm, which insured Weisgram's house, also sued the manufacturer. The cases were consolidated and tried on the theory of strict products liability. The jury awarded $500,000 to Chad, and nearly $200,000 to State Farm. Marley appealed, asking that the jury verdict be overturned.

Chad's success hinged on the testimony of three witnesses. The Eighth Circuit in Weisgram v. Marley Company, 169 F.3d 514 (8th Cir. 1999) rejected the testimony of each:

• A fire captain who performed the initial investigation, had testified that the fire started because of a malfunction in the heater. This first witness was admittedly not an "electrical expert," but the trial court allowed him to assert that the heater malfunctioned, causing the fire. The Eighth Circuit concluded: "[W]hile [the expert] was qualified to testify that he thought the fire originated in the area of the baseboard heater, we think the court abused its discretion when it permitted the witness to "run away" with his own unsubstantiated theories: that the throw rug somehow blocked the heater, that the rug then ignited, that the heater transferred sufficient heat to the floor that the vinyl adhesive … 'off-gassed,' and that the heater radiated enough heat so that those vapors - whatever they were - ignited. [The expert's] qualifications as a fire investigator did not give him free rein to speculate before the jury as to the cause of the fire by relying on inferences that have absolutely no support in the record."
• An electrician testified as a "fire investigator" and a "technical forensic expert." He drew his conclusions largely from the first expert's conclusions. The expert speculated that the fire could have started at the heater and spread through a carpet, igniting the sofa. He was "bothered" by the condition of the thermostat in an adjoining condominium, consulted a metallurgist to determine if a defect might have led to the heater failure, and then concluded based on the metallurgist's report that the heater was defective. The Eighth Circuit noted: "There is no reasonable basis for [the expert's] opinions. [The expert's] own testimony attests to the fact that he was offering nothing more than conjecture as to whether or not the Weisgram heater was defective."
• The metallurgist was not an expert in fire cause and origin, baseboard heater operation, or the design or testing of contacts in a baseboard unit. Nevertheless, he testified that the thermostat contacts were defective because they were serrated. He performed no tests on the heater because it was destroyed in the fire. He performed no tests on similar heaters. The Eighth Circuit dismissed his testimony out of hand: "He did not have the necessary experience - either from his work as a metallurgist or from tests performed in connection with this case - to be qualified as an expert who could testify that the high limit of control failed because it was defectively designed or manufactured . . . . We conclude that the nexus between his observations of the contact that the heater was defective is not scientifically sound . . . . There is simply too great an analytical gap between the data and the opinion offered."

The Eighth Circuit concluded that - because the experts speculated and testified beyond the realms of their expertise - the jury could only have engaged in speculation, too. Finally, the court rejected:

any contention that we are required to remand for a new trial because our failure to do so would deny the plaintiffs the opportunity to reopen discovery and identify additional witnesses who might testify to their theory of liability. Although [FRCP] 50(d) certainly gives this court the discretion to remand for a new trial, we can see no reason to give the plaintiffs a second chance to make out a case of strict liability. This is not a close case. The plaintiffs had a fair opportunity to prove their claim and they failed to do so.

The Supreme Court agreed and expanded on the Eighth Circuit's theme:

Since Daubert, moreover, parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet. It is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail. We therefore find unconvincing Weisgram's fears that allowing courts of appeals to direct the entry of judgment for defendants will punish plaintiffs who could have shored up their cases by other means had they known their expert testimony would be found inadmissible. In this case, for example, although Weisgram was on notice every step of the way that Marley was challenging his experts, he made no attempt to add or substitute other evidence.

Thus, the Court concluded, the court of appeals' authority to direct entry of judgment as a matter of law (JAML) "extends to cases which, on excision of testimony erroneously admitted, there remains insufficient evidence to support the jury's verdict."

Weisgram warns the litigants that they can expect another gatekeeper when the trial court fails to exclude "junk science."

Evidentiary Standards Haven't Changed

Does the threat of two gatekeepers somehow change Daubert standards? Does Weisgram raise the level of performance required for experts and the attorneys trying to get the opinions into a jury room Oz? Not likely. Weisgram's experts failed even the most basic post-Daubert requirements: they failed to base their opinions in reliable data and testified in areas beyond their expertise. Their testimony simply lacked the required scientific nexus between "the data and the opinion offered." And the appellate court exercised the gate-keeping function abdicated by the trial court.

Weisgram reinforces counsel's duty to obtain reliable and admissible expert testimony the first time. Since Weisgram, Rule 702 has incorporated Daubert:

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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Facts or data "perceived or made known to the expert," Rule 703, may inform the expert's opinion. But the expert may not rely on facts or data from experts in a different specialty. Dura Automotive Systems of Indiana v. CTS Corp., 285 F.3d 609 (7th Cir. 2002). That was Weisgram's immediate problem: an electrician needed the input of a metallurgist because he had no reasonable electrical explanation of the plaintiff's theory; the metallurgist in turn had no electrical expertise and had no data to support his findings. Neither of these experts had any data supporting their assertions, but in turn based their assumptions on the fire investigator's unsupported theory about the baseboard heater. "That," as Judge Posner has noted, is not "responsible science." The wizards must hobnob with their own kind - they cannot act as mouthpieces for others in a different field. Plourde v. Gladstone, 190 F. Supp. 2d 708 (D.Vt. 2002).

Generally, developments since Weisgram have focused on the trial court's gate-keeping function, and an expert's ability to rely on theories expounded beyond the theory of expertise.

The Courts' Continuing Gate-keeping Function

Granted, Weisgram is not a toxic tort/environmental litigation (TTEL) case, nor has it enjoyed the same reverence accorded Daubert's other progeny, Joiner and Kumho Tire. On the other hand, Weisgram emphasizes the courts' gate-keeping function. It is this function that has informed most recent TTEL decisions.

For example, in In Re Hanford Nuclear Reservation Litigation, 292 F.3d 1124 (9th Cir. 2002), the trial court refused to hold a Daubert hearing. The Ninth Circuit noted that the district court had an accurate record - expert reports, deposition testimony, and the expert's affidavits - and its refusal to hold a Daubert hearing wasn't an abuse of discretion. But the appellate court concluded that the trial court took its gate-keeping function too far by requiring members of the class to show specific evidence of generic causation (that plaintiffs were exposed a double dose of radiation). As a result, the court limited the expert testimony to that which would have shown that the plaintiffs could have been exposed to a double dose of radiation at Hanford.

The Fifth Circuit recently noted that the trial court's gate-keeping role is not intended to "serve as a replacement for the adversary system." Pipitone v. Biometrics, Inc., 288 F.3d 239 (5th Cir. 2002). In fact, the court noted, the trial court cannot exclude evidence if it believes one set of facts over another. As other circuits have suggested, the trial court should not extend its gate-keeping function to credibility issues that can be effectively resolved through cross examination, unless, of course, the expert's testimony offers no assistance to the jury. Bonner v. ISP Technologies, 259 F.3d 924 (8th Cir. 2001); Amorgianos v. Amtrak, 2002 U.S.App. Lexis 17792 (2d Cir. 2002).

The Daubert inquiry gives the court discretion to ensure the gate remains closed to junk science, while admitting reliable expert testimony. But expert testimony must be reliable at every step, including appeal. The TTEL practitioner cannot count on the appellate courts to leave the gate open to unsupported expert testimony.

Tamar J. Cerafici is an attorney and senior environmental consultant with CH2MHILL. She also teaches environmental law in the MS program at the University of Idaho, guest lectures in environmental law and bankruptcy at the University of Idaho Law School, and occasionally darkens the door of a courtroom.

Apologies to Elliot Eder, whose informative article on recent Daubert developments in last May's EHNR Newsletter, inspired the title. References to Harry Potter are discouraged, despite my admiration for J.K. Rowling's efforts. Besides, TTEL advocacy has a lot more in common with Oz than Hogwarts, despite its resemblance to quiddich.