Product Liability Update

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1 January 2006 Product Liability Update Volume II, Number 1 Partnering With Our Clients Expert Testimony: Insufficiency of Factual Foundation Should Be Challenged In almost every product liability case, defense lawyers are faced with the question of when and how to best challenge the admissibility of expert opinion testimony. Whether you are in state or federal court, reliability is the touchstone for the admission of expert testimony. This is true where the testimony is governed by the Daubert standard, the Frye standard, or any other standard. (See Table on page 5 for a list of the expert admissibility standard each state employs.) A threshold consideration when determining if an expert s opinion is reliable is whether the expert has a proper factual foundation upon which to base his or her opinion. NEW YORK LONDON LOS ANGELES PARIS SAN FRANCISCO WASHINGTON, D.C. PHILADELPHIA PITTSBURGH OAKLAND MUNICH PRINCETON NORTHERN VA WILMINGTON NEWARK MIDLANDS, U.K. CENTURY CITY RICHMOND Despite the importance of the factual foundation requirement which would seem to require diligent judicial scrutiny many courts forego the necessary pretrial analysis as to the adequacy of the factual foundation for the expert opinion. Instead, some courts allow expert testimony that is lacking a proper factual foundation by falling back on the time-worn proposition that the adequacy of the factual foundation goes to the weight of the testimony, not the admissibility. See, e.g., Archer Daniels Midland Co. v. AON Risk Services, Inc., 356 F.3d 850, 858 (8 th Cir. 2004) ( Generally, the factual basis of an expert s opinion goes to credibility of the testimony, not admissibility. ). Likewise, other courts often justify admission of expert testimony which is based on a shaky factual foundation by charging the opponent with exposing such weaknesses on cross-examination. See, e.g., Wash Solutions, Inc. v. PDQ Manufacturing, Inc., 395 F.3d 888, 895 (8 th Cir. 2005) ( As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross examination ) (internal citations omitted). This article highlights successful challenges to expert testimony in a variety of contexts and at different stages of the proceedings, where courts were persuaded by the defense that expert testimony failed to satisfy the requisite factual foundation and therefore should be precluded. Some courts use state evidentiary rules to impose the factual foundation requirement and to preclude expert testimony that is not based upon a solid factual foundation; others use the Daubert and/or Frye standards to impose such requirements. 1 Given the importance of a proper factual foundation, defense (continued) r e e d s m i t h. c o m

2 Expert Testimony: Insufficiency of Factual Foundation Should Be Challenged continued from page 1 Counsel should keep their eye on preserving this issue for post-trial motions and appeal, where these challenges can still be successful. counsel should challenge an expert s opinion at each stage in the proceedings. As will be seen in the examples below, even if the challenge fails in pre-trial proceedings or at trial, counsel should keep an eye on preserving this issue for post-trial motions and appeal, where these challenges may still be successful. Hansen v. Wyeth In a recent case tried by Michael T. Scott of Reed Smith s Philadelphia office, the Philadelphia Court of Common Pleas precluded an expert s opinion because it lacked a proper factual foundation. In making this determination, the court did not use the Frye standard, but rather, utilized a state rule of evidence: Pennsylvania Rule of Evidence 705. See Hansen v. Wyeth, 2005 WL (Pa. Com. Pl. Oct. 10, 2005). Moreover, the court made its decision on post-trial motions, resulting in overturning a verdict for plaintiff and requiring a new trial. Pennsylvania Rule of Evidence 705 provides as follows: Rule 705 Disclosure of Facts or Data Underlying Expert Opinion. The expert may testify in terms of opinion or inference and give reasons therefor; however the expert must testify as to the facts or data on which the opinion or inference is based. Pennsylvania Rule of Evidence 705 has no counterpart in the Federal Rules. Hansen, 2005 WL at *1; see also Official Comment by the Committee on the Rules of Evidence following Pa. R.E. 705 ( the text and substance of Pa. R.E. 705 differ significantly from F.R.E. 705 ). Unlike Federal Rule 705, Pennsylvania s Rule 705 requires disclosure of the factual basis for an expert s testimony on direct examination. In fact, there is a dual burden on the proponent of the opinion evidence: (1) to present the complete factual foundation and basis for the expert testimony on direct examination and (2) to demonstrate that the basis is independently supported by facts of record. Id. at *2. This is to ensure that the salient facts [are] in the record so the jury can factually evaluate the basis for the expert opinion. Id. (quoting Official Comment by the Committee on the Rules of Evidence following Pa. R.E. 705). The jury must reject an expert s opinion if it finds the expert s articulated factual basis to be inconsistent with its own factual findings. 2 Id. at *2 and *3. The Hansen court held that such expert disclosure may not be a mere formalistic recitation of material reviewed and considered, a ritualistic identification of voluminous depositions, libraries of medical literature, and thousands of documents [which are] intended to impress the jury by quantity or a conclusory statement, vigorously asserted. Id. at *5, *8 and *9, respectively. Rather, the essence of Pennsylvania s Rule 705 is to provide the factual basis of the expert s opinion in order to assist the jury with its fact-finding role, not to replace or supplant this role. Id. at *19. More specifically, in Hansen, the plaintiffs claimed that the pharmaceutical company defendant was negligent in failing to warn of a risk that it should have known about. To support their position, the plaintiffs presented the testimony of Dr. Harris Busch, their sole liability expert. Dr. Busch testified, inter alia, that the defendant s safety surveillance department was inadequate and that the defendant 2

3 Product Liability Update failed to discern a signal from adverse drug event reports ( ADEs ) which, if detected, would have resulted in a different warning to the medical community regarding this prescription drug. The court allowed Dr. Busch s testimony at trial; however, in posttrial motions it found that there was not a sufficient factual foundation for the opinions of Dr. Busch and, thus, granted a new trial. In granting a new trial, the Hansen court analyzed, inter alia, the factual foundation for Dr. Busch s opinion that the safety surveillance department was inadequate. Specifically, Dr. Busch had opined that the department was not adequately staffed, adequately trained, or qualified to do its tasks. Id. at *11 *13. However, on cross examination, Dr. Busch admitted that his opinion was based on the circular reasoning that they were inadequate because they missed the signal. Id. at *13. In support of its grant of a new trial, the court cited page after page of Dr. Busch s cross-examination testimony where Dr. Busch repeatedly admitted that he did not know what kind of training any of the numerous employees had received; that he did not know what level of education these employees had; that he did not know what any of these employees qualifications were. Id. at *11 *13. Following this recitation, the court held that [a]n expert witness must provide a basis grounded in logic and in case-specific factual knowledge for an opinion to assist the jury. The opinion of Dr. Busch as to the qualifications of the surveillance department had no basis in fact and cannot stand as the basis of a verdict. Id. at *13. Similarly, Dr. Busch testified that the pharmaceutical company defendant was negligent because it failed to discern a signal from numerous ADEs. Dr. Busch was led through the ADEs by plaintiffs counsel. Id. at *15 *16. However, in cross examination, counsel for the defense systematically demonstrated that Dr. Busch could not testify about the specific facts of even one of the ADEs upon which he relied. Id. at *15 *18. In fact, Dr. Busch admitted that he could not recall any specifics about any of the ADEs and that he did not know who prepared the binders of selected ADEs that he purportedly relied upon. Id. at *16 *17. The court examined all of Dr. Busch s testimony regarding the ADEs and concluded that not one individual adverse event report was explained to the jury in direct examination and as demonstrated in crossexamination not one specific example could be used by Dr. Busch to provide an explanation. Id. at *16. This case demonstrates not only the importance of challenging the underlying factual basis but in also carefully reviewing existing state laws and rules to determine what other tools are available to assist in mounting such a challenge at each step of the proceedings. 3 Other Cases Where the Courts Found the Factual Foundation Lacking The Hansen opinion was decided on the basis of one of Pennsylvania s evidentiary rules; however, other courts have likewise determined that an expert s opinion lacks a proper factual foundation by utilizing other methods. Would You Like to Receive Future Issues of Product Liability Update by ? We would be happy to send Product Liability Update to you as an Adobe Acrobat file. Please provide your and any mailing address updates below, and send the information to Leslie Austin by mail, phone, fax or . Leslie Austin Reed Smith LLP 1999 Harrison Street Suite 2400 Oakland, CA Phone: Fax: laustin@reedsmith.com Name Company Title Address City State Zip/Postal Code (continued) Phone 3

4 Expert Testimony: Insufficiency of Factual Foundation Should Be Challenged continued from page 3 Carefully (review) existing existing state laws and rules to determine what other tools are available to challenge at each step of the proceedings. Willis v. Besam Automated Entrance Systems, Inc. In Willis v. Besam Automated Entrance Systems, Inc., 2005 U.S. Dist. LEXIS (Nov. 3, 2005), the U.S. District Court for the Eastern District of Pennsylvania granted the defendants motion to exclude plaintiff s engineering expert s testimony because, based on Daubert, it was not based on sufficiently reliable research methods. The court precluded the expert s testimony because the expert merely relied on documents provided by plaintiff s lawyers and did not conduct any investigation of his own. The court determined that such methodology was unsound and that the expert s opinion was mere speculation and conjecture. Willis involved a plaintiff who was struck by a revolving door at a Marriott hotel. Id. at *2 *3. Plaintiff s engineering expert, Ronald J. Panunto ( Panunto ), concluded that the Marriott had intentionally disabled the safety devices on the revolving door. Id. at *11, *16 *17. Panunto based his conclusion on the fact that on other occasions, other unauthorized work had been done on the door. Id. at *16 *17. The court precluded Panunto s opinion because there was no evidence in the record that the safety devices were disconnected after the door was serviced, but before plaintiff s accident. Id. at *23. The court further emphasized that Panunto s theory was not based on a methodology which can be readily tested or subjected to peer review. Id. Panunto did not perform any independent investigation, nor did he exclude any other causes of the accident, and even conceded the plaintiff could have caused the accident. Id. at *26 *27, *43. Slay v. Keller Industries, Inc. In Slay v. Keller Industries, Inc., 823 So.2d 623 (Ala. 2001), the Alabama Supreme Court considered a challenge to admission of an expert s testimony based on the expert s lack of factual foundation. The court applied the Frye general acceptance standard, but noted that under both Frye and Daubert an expert must have a solid factual foundation before the testimony is admissible. The court held that [m]ere assertions of belief, without any supporting research, testing, or experiments, cannot qualify as proper expert scientific testimony under either the general-acceptance standard enunciated in Frye or the scientifically reliable standard of Daubert. Id. at 626. Plaintiff Slay brought a products liability suit against a ladder manufacturer following plaintiff s fall from an aluminum ladder. Id. at 624. Plaintiff offered the expert testimony of Dr. B.J. Stephens, a mechanical engineer. Id. at 625. Dr. Stephens opined that while he did not think the ladder at issue was defective, he believed that it was possibly under designed. Id. However, during his deposition, Dr. Stephens admitted that he had performed no tests on the ladder or any exemplar ladders, that he had not measured the gauge of aluminum used to make the ladder, that he had not reconstructed the accident to determine the sequence of events and the causes of those events, and that he had not determined that the ladder was in any way defective in its design, manufacture, or distribution, or that Keller failed to provide adequate warnings. Id. at 626. Defendant filed a motion in limine to preclude this expert s testimony and then successfully moved for summary 4

5 Product Liability Update judgment. In affirming the grant of summary judgment, the Slay court held that the expert s bald assertion that the ladder was not properly designed is not sufficient. Id. Rather, the court held that when presenting testimony, including expert testimony, a party must present facts, not merely inferences based upon belief. Id. (quoting Davis v. Ford Motor Credit Co., 599 So.2d 1123, 1125 (Ala. 1992)). Norfolk Southern Railway Co. v. Rogers In Norfolk Southern Railway Co. v. Rogers, 621 S.E.2d 59 (Va. 2005), the Virginia Supreme Court recently reversed a trial court decision based on an expert s testimony because the expert did not have an adequate factual foundation to support his testimony that plaintiff had been exposed to a sufficient level of silica to cause his alleged silicosis. This decision was not based on Frye or Daubert, but, rather, was based on the application of the Virginia rules of evidence. At trial, plaintiff s expert, Richard A. Vogel, Jr., opined that plaintiff had been exposed to excessive levels of silica without pointing to any specific facts. Id. at 63. The defendants objected to the admission of Vogel s testimony both at the conclusion of plaintiff s casein-chief and at the close of all of the evidence on the basis that there was not a sufficient factual foundation; the trial court overruled the objection and motion to strike on both occasions. The jury returned a verdict in favor of plaintiff and defendant appealed. The appellate court in Rogers found that there was not a sufficient basis for the opinion, and reversed. The court stated that an expert s opinion must have an adequate factual foundation, and an expert s testimony will be found to be inadmissible if it is speculative in nature. Id. at 65. The court further held that it is the trial court s responsibility to ensure that only properly admitted evidence is considered by the jury. Id. (internal citations omitted). The court found instructive Vogel s admission that in order to determine the allowable silica level, it is necessary to know the silica content of the material being tested. Id. at 65. Despite that admission, Vogel did not know the kind of ballast used by Rogers during his employment with Norfolk Southern nor did he know its silica content. Id. at 66. Moreover, Vogel admitted that in order to know if a worker is at risk, it is necessary to know the volume of Daubert substance to which the worker was exposed. Id. Vogel then conceded that he did not know the volume of substance to which Rogers was exposed. Id. The court determined that Vogel s opinion was inadmissible because it was based on assumptions that [had] no basis in fact. Id. (internal citation omitted). Conclusion These are but a few recent examples of courts preclusion of expert testimony based on the lack of a sufficient factual foundation. As these four cases exemplify, such preclusion has been grounded in Daubert and Frye admissibility standards as well as state Expert Witness Admissibility Standards 4 Alaska Arkansas Delaware Georgia Indiana Kentucky Louisiana Maine Massachusetts Montana Nebraska New Hampshire New Mexico Ohio Oklahoma Oregon Rhode Island South Dakota Texas Vermont West Virginia Wyoming Frye Alabama Arizona California District of Columbia Florida Hawaii Illinois Kansas Maryland Michigan New York North Dakota Pennsylvania Washington Other (continued) Colorado Connecticut Idaho Iowa Minnesota Mississippi Missouri New Jersey Nevada North Carolina South Carolina Tennessee Utah Virginia Wisconsin 5

6 Expert Testimony: Insufficiency of Factual Foundation Should Be Challenged continued from page 5 evidentiary rules. The result is the same no matter which standard is employed: an expert s opinion must be based on a sufficient factual foundation to be admissible. Defense counsel should challenge the notion that an expert s factual infirmity merely goes to the weight of such testimony. Further, defense counsel should challenge the notion that cross-examination alone is a sufficient tool to expose such infirmities, and, accordingly, should continue to bring these challenges to the courts at all phases of proceedings from in limine motions to post-trial motions. 1 The desire to keep such testimony well-grounded in fact is not limited to the courts or to the bar. See, e.g., Move to Crack Down on Expert Witnesses, The National Law Journal, Dec , 2005, Vol. 28, No. 16 (American Academy of Neurology ( AAN ) announced changes to its guidelines regarding expert testimony which seek to prevent its members from being expert witnesses who are just another hired gun for one party or another to spin the truth a particular way. Rather the AAN hopes the changes to its guidelines will help neurology expert witnesses be true expert witnesses whose testimony will help the process). 2 Judge Bernstein noted that Pennsylvania s Rule 705 is under-utilized by both the courts and the Pennsylvania bar. Hansen, 2005 WL at *6 ( Although adopted in 1998, Rule 705 has been cited only five times in appellate decisions ); see also id. at *9 ( The practicing bar, imbued with the federal approach, will inadvertently or intentionally ignore the substantive difference in Pennsylvania law ). 3 The Hansen case is currently on appeal to the Pennsylvania Superior Court. 4 For more complete information regarding the standard employed by each state and for a memorandum including citations to the seminal cases for each state, please contact Tracy Weiss at tweiss@reedsmith.com or Heather Ritch at hritch@reedsmith.com. CONTRIBUTORS TO THIS ISSUE Tracy G. Weiss, Esq. Partner, Philadelphia tweiss@reedsmith.com Tracy is a member of the firm s product liability practice group. She has been trial counsel in numerous pharmaceutical cases tried in Philadelphia s mass tort complex litigation program and has extensive experience in all stages of litigation in both state and federal court. Caroline A. Flotron, Esq. Associate, Philadelphia cflotron@reedsmith.com Caroline is a member of the firm s product liability practice group and has extensive experience defending product liability and pharmaceutical matters. Heather A. Ritch, Esq. Associate, Philadelphia hritch@reedsmith.com Heather is a member of the firm s product liability practice group and has experience defending product liability pharmaceutical cases in mass tort programs and patent infringement cases. Product Liability Update is published by Reed Smith to keep clients and friends informed of legal developments in product liability law. It is not intended to provide legal advice to be used in a specific fact situation. The editor of Product Liability Update is Lisa M. Baird ( ), with the firm s Los Angeles office. 6 Reed Smith refers to Reed Smith LLP, a limited liability partnership formed in the state of Delaware. Reed Smith LLP Quality Matters.SM