Litigation and The Courts

First Circuit Report: For Experts, Actual Knowledge and Experience Counts

December 2008

By Jeanne P. Herrick*
As published by Daubert Online, the e-newsletter of
DRI — The Voice of the Defense Bar.

The issue of reliability under Daubert was addressed in three cases this spring.

In Rivera-Cruz v. Latimer, Biaggi, Rachid & Godreau, LLP, 2008 U.S. Dist. LEXIS 46562 (D.P.R. June 16, 2008), the expert’s lack of credibility resulted in the court finding that his testimony was not the product of reliable methods. One of the issues to be decided in the case was whether certain files on Defendant Godreau’s computer contained pornographic images. Another involved email sent from a certain email account.

Upon examining Godreau’s computer, the plaintiff’s expert was able to locate and open files containing pornographic images. The defendant’s expert concluded that the same computer contained no such images. In a hearing before the magistrate, the defendant’s expert initially stated he was unable to locate the relevant files. After plaintiff’s counsel’s provided assistance, the expert was able to locate the files and then was asked to open them. He responded that he could not because his firewall had “come up on” him and concluded that because he could not open them, nothing was there. This demonstration was one piece of evidence that caused the court to question the due diligence the defendant’s expert put forth in conducting the investigation.

With respect to the email account, the defendant’s expert stated that he was unaware that a particular email address associated with Godreau. In deposition, however, Godreau had testified that the email address belonged to him. When questioned about this, the expert testified that he had relied upon Godreau’s counsel’s assertions when conducting his investigations, even though he knew Godreau had testified otherwise.

The court found it "extremely problematic" that the expert "blindly relied on information given to him by counsel, and failed to verify the information from reliable, independent sources." "[A]bsent independence from the party or its advocates, a testifying expert lacks the credibility necessary to be of assistance to the trier of fact." The court remarked that "It is not the job of an expert to parrot the opinions of counsel, but to 'bring to the jury more than the lawyers can offer in argument.'"

In a product liability case, the design of an electrical control panel was at issue. See Warford v. Industrial Power Systems, Inc., 2008 U.S. Dist. LEXIS 40718 (D.N.H. Oct. 20, 2008) (unpublished). Here the expert’s experience made him a reliable witness. The case involved a flash fire aboard a ship known as the Isabelle Taylor, which caused severe burns to the ship’s engineer. The plaintiffs’ expert was expected to testify that a number of defects in the design of the control panel was one of the causes of the fire.

The plaintiffs’ proposed expert ran a marine electrical service company, where he spent almost 20 years doing strictly electrical work on boats. Prior to that, he spent more than a decade as a marine engineer; the vast majority of that work was electrical as well. His company installed control panels designed and built by the company or a third party. The panels his company designed, however, were much less complicated than the one designed by one of the defendants for the Isabelle Taylor.

The defendants sought to exclude the expert’s testimony asserting that, because the expert never designed a control panel for a system as complicated as the Isabelle Taylor’s, he was as unqualified as the pilot of a Piper Cub would be in commenting on the technique of the pilot of a Boeing 747. They also argued that he was unqualified because he was not a licensed electrician or engineer.

The expert stated he formed his opinions on the design of the control switchboard based on own experience in designing and installing similar components. The court observed that "[i]n certain fields, experience is the predominant if not sole, basis for a great deal of reliable expert testimony, without regard to the particular Daubert criteria. So it is immaterial — and unsurprising — that an experienced designer of marine electrical switchboards would draw upon that experience, rather than peer-reviewed studies or other published literature, in identifying alleged defects in a particular switchboard designed by somebody else."

In Chadwick v. Wellpoint, Inc., 550 F. Supp. 2d 140 (D. Me. 2008), the plaintiff charged sex discrimination because she was denied a promotion for which she said was better qualified than her competitor — another woman. In this case, the court excluded expert testimony that was based upon the experience of mothers in the workplace generally and not the actual experiences of the plaintiff and her supervisors.

The plaintiff was the mother of four children — six-year-old triplets and an eleven-year-old. In explaining the promotion denial, the decisionmaker stated, “you’re going to school, you have the kids, and you just have a lot on your plate right now." Id. at 141. The plaintiff alleged that this and other comments made by her supervisors provide evidence of sex-based stereotyping or discriminatory behavior regarding a mother’s child raising obligations in contrast to a father’s. The other comments include the statement "Oh my — I did not know you had triplets . . . Bless you!"

The plaintiff’s expert was expected to testify about the extent of sex-based stereotyping in the United States and its workplaces, the meaning of certain words including "Bless you," which in that context the expert asserted shows sexual stereotyping, and that it is very unlikely that a man would have been told that he had too much on his plate because of school and children.

The court found that neither the comments taken together nor anything else in the record suggested a general atmosphere of sex-based stereotyping or bias in the plaintiff’s workplace. It further declared that the expert’s opinion "about the prevalence of sex-based stereotypes in America is no substitute for actual evidence (direct or circumstantial) about these decisionmakers and their beliefs and behaviors. The expert, whatever her professional credentials, is not competent to testify about what these supervisors meant, consciously or unconsciously, in using certain words." Id. at 147 (footnote omitted).

Reprinted by permission, Daubert Online. To read more Daubert articles and circuit reports, go to Daubert Online.

* Jeanne Herrick is licensed to practice in New Hampshire and Massachusetts.

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