Expert witness ruling in District of Columbia cell phone litigation
“Can cell phones cause brain cancer?” That is a fundamental issue in Murray v. Motorola, Case No. 2001 CA 008479 (Superior Court for the District of Columbia, Aug. 8, 2014), in which Judge Frederick H. Weisberg has issued a 76 page opinion, ruling on the defendants’ Dyas/Frye challenges to the admissibility of the plaintiffs’ expert witnesses. Judge Weisberg, however, did not render an opinion on that causation issue. Rather, his opinion focuses only on whether plaintiffs’ expert witnesses should be permitted to testify before the jury.
Under the Dyas/Frye test which is currently the law in the District of Columbia, the expert testimony is presumptively admissible if the subject is beyond the ken of an average layperson, the expert is qualified to offer an opinion on the subject, the expert uses a methodology that is generally applied in the relevant scientific community to arrive at his opinion, and the probative value of the expert’s testimony is not substantially outweighed by the risk of undue prejudice.
In December 2013 and January 2014, Judge Weisberg conducted an evidentiary hearing to determine the admissibility of plaintiffs’ experts, hearing four weeks of testimony from plaintiffs’ eight experts and defendants’ four rebuttal experts, receiving 280 exhibits containing thousands of pages of documents, and reviewed hundreds of pages of legal briefing. At this stage of the litigation, the general causation question presented is whether the non-ionizing radiation from cell phones has a non-thermal effect that causes, promotes, or accelerates the growth of brain tumors, specifically gliomas and acoustic neuromas.
The opinion contains an in-depth discussion of the Dyas/Frye standard, which practitioners will find useful.
Further, Judge Weisberg included a four page discussion of the differences between the Dyas/Frye standard adopted by the D.C. Court of Appeals, and the federal Daubert standard governing the admissibility of expert testimony. The Court noted that “the scientific dispute in this case illustrates that the choice of one approach over the other can be outcome determinative.” This discussion may ultimately set the stage for the D.C. Court of Appeals to undertake an en banc review of whether to adopt the Daubert standard.
Out of the eight experts for the Plaintiffs, the Court excluded the testimony of three completely: Dr. Shira Kramer; Dr. Guatam Khurana; and Dr. Dimitris Panagopoulos. The Court further ruled that the testimony of three of the Plaintiffs’ experts on general causation is not excluded: Dr. Michael Kundi; Dr. Wilhelm Mosgoeller; and Dr. Abraham Liboff. Finally, the remaining two Plaintiffs’ experts were only excluded in part: Dr. Igor Belyaev; and Dr. Laura Plunkett. Thus, the Plaintiffs’ case has apparently survived a knockout punch in this round of litigation, and the parties will now move on to conduct broader discovery on the general causation issue before proceeding to specific causation.
Judge Weisberg’s opinion makes it clear that, based on the present record, he thinks that the scientific evidence on the general causation question is too unsettled for any scientist to say, to a reasonable degree of scientific certainty, that cell phones cause brain cancer. On the other hand, Judge Weisberg’s opinion also calls for more research and cautions that, “If there is even a reasonable possibility that cell phone radiation is carcinogenic, the time for action in the public health and regulatory sectors is upon us. Even though the financial and social cost of restricting such devices would be significant, those costs pale in comparison to the cost in human lives from doing nothing, only to discovery thirty or forty years from now that the early signs were pointing in the right direction.”
Posted by David B. Stratton on 08/10/2014 at 06:36 PM
District of Columbia
Expert Witness Issues
Effective Demonstrative Evidence
We always look for ways to get the most value for our litigation expense investment. Not long ago, I secured a defense verdict in a case where the plaintiff turned left in front of a truck driven by my client. The issue was whether or not he had time to react and avoid the collision. Using a radar gun and exemplar vehicle, the plaintiff’s expert recreated what he believed was the acceleration of the plaintiff’s vehicle through the interchange. One of our most effective demonstrative exhibits was a split screen clip comparing the product of the expert’s calculations (on the right) with the actual flow of traffic at the time of day when the accident occurred. Click here if video embed does not appear below.
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Posted by D. Stephenson Schwinn on 01/20/2014 at 06:47 PM
Expert Witness Issues
Motor Vehicle Accidents
Legal malpractice in D.C.: the common knowledge exception to the requirement of expert opinion
In Carranza v. Fraas, No. 05-0117 (D.D.C. Oct. 31, 2011), Judge Urbina granted summary judgment on legal malpractice and breach of fiduciary duty claims, due to the plaintiffs' lack of expert testimony supporting some of their claims, and the plaintiffs' lack of admissible evidence to support their last remaining claim. The plaintiffs, who were two female farmers from Montana, brought suit against the defendant attorney for legal malpractice and breach of fiduciary duty arising out of their underlying civil rights action against the USDA.
The plaintiffs had three claims. First, they alleged that the attorney failed to meet USDA-imposed deadlines in pursuing a settlement in the civil rights action. Second, they alleged that the attorney failed to disclose a conflict of interest arising from his work as a registered lobbyist before the USDA. Third, they alleged that the attorney failed to inform them of a settlement offer by the USDA.
Judge Urbina granted summary judgment on the first two claims in an earlier opinion, Carranza v. Fraas, 763 F.Supp.2d 113 (D.D.C. Feb. 7, 2011). The Court noted that to establish legal malpractice under D.C. law, the plaintiffs must demonstrate the applicable standard of care, that the attorney violated that standard and that the violation caused a legally cognizable injury. They must establish the standard of care by presenting expert testimony, unless the attorney's lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge.
Here, the plaintiffs had failed to designate an expert witness, and argued that their allegations fell within the common knowledge exception. Concerning the allegation that the attorney failed to meet USDA deadlines, Judge Urbina acknowledged that failing to adhere to court filing deadlines is a type of negligence that may fall within the common knowledge exception. However, not every failure to meet a deadline falls within the common knowledge exception. The alleged deadline here was an unspecified time during which the USDA expected the defendant to file paperwork in accordance with the purported settlement offer. The Court found that "it is far from clear that a lay jury could determine the significance of the defendant's alleged failure to comply with such deadlines without the aid of expert testimony", and that the common knowledge exception did not apply to these deadlines.
The plaintiffs' second claim was based on an alleged conflict of interest. While other jurisdictions have held that no expert testimony is necessary in cases involving obvious conflicts of interest, in D.C. the Court observed that it has been held that "assessing an alleged conflict of interest is a task that falls beyond the ken of a lay juror relying on common knowledge and requires expert testimony." Thus, the Court found that the common knowledge exception did not apply to the conflict of interest claim.
The plaintiffs' third claim was that the attorney failed to inform them of the USDA's January 2001 settlement offer. The Court did find that the common knowledge exception applied to this claim:
Without question, an attorney has a duty to inform his client of meaningful settlement offers made in the course of civil litigation. See, e.g., D.C. RULES OF PROF'L CONDUCT R. 1.4(a) cmt. 1 (providing that "[a] lawyer who receives from opposing counsel an offer of settlement in a civil controversy . . . is required to inform the client promptly of its substance") . . . .
The Court reasoned that a lay juror could recognize that an attorney's failure to report a settlement offer is a breach of duty, and is a withholding of information necessary to make decisions that are at the core of the attorney-client relationship. However, the Court denied summary judgment on this claim without prejudice, to allow for further discovery as to whether the USDA had in fact ever made the alleged settlement offer.
The Court also refused plaintiffs' motion to appoint an expert under Fed. Rule of Evidence 706(A), which was a ruling that drew some scholarly attention.
In the subsequent opinion, the Court granted the renewed summary judgment motion by the defense. After discovery, it simply turned out that there was no evidence that the USDA had actually made the alleged settlement offer in January, 2001. The plaintiffs' opposition to the renewed motion for summary judgment rested only upon their own unsupported affidavit, which itself merely presented hearsay. The contemporaneous documentation of the settlement negotiations indicated that the USDA had never made the alleged settlement offer after all.
This case illustrates the need for a practitioner to document settlement negotiations carefully, in order to avoid any misunderstandings and resolve any claims expeditiously.
Legal malpractice decision explores roles of judge, jury, and expert in District of Columbia
In a legal malpractice case, Hickey v. Scott, No. 07-1866 (D.D.C. July 11, 2011), the District Court explored the respective roles of the judge, jury, and expert under D.C. law. (An earlier decision in this case was previously discussed here.)
The claim discussed in this ruling was the plaintiff's allegation that the lawyer violated the applicable standard of care by failing to request Laffey Matrix hourly rates in his petition for attorney's fees in the underlying action before the EEOC. Before the District Court was the issue of the permissible scope of expert testimony with regard to that claim. Should the parties' experts be permitted to testify on whether it is a breach of the appropriate standard of care for an eligible attorney not to request Laffey rates in his fee petition before the EEOC, and instead request only his lower, contractual rates? Second, should the experts be permitted to testify whether the attorney met the legal criteria for an award of Laffey rates? Third, should the experts be permitted to testify whether the attorney's failure to petition for Laffey rates was the proximate cause of any injury to the former client?
Each of these questions implicated the respective roles of the Court, the jury, and the experts at trial.
The Court ruled that whether it is a breach of the applicable standard of care for an eligible attorney not to file a fee petition for Laffey rates before the EEOC is a question that the jury must decide.
However, expert testimony as to the applicable standard of care is appropriate and necessary, unless the attorney's lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge.
The Court also ruled that the experts would be allowed to opine on whether it is a breach of the standard of care for an attorney in the same circumstances not to petition for Laffey rates.
On the other hand, the legal criteria for an award of Laffey rates was ruled to be a matter of law, within the sole province of the Court, and upon which the experts were not permitted to testify. Surprisingly, the District Court cited an Illinois decision on this point.
The Court also ruled that once it had instructed the jury as to the law on an attorney's eligibility for Laffey rates, the question of whether the attorney satisfied these legal criteria was one for the jury to decide.
Finally, the Court considered the issue of who would decide whether the attorney's failure to petition for Laffey rates was the proximate cause of injury? In other words, whether such a petition for Laffey rates, if made, would have been successful? The District Court characterized this as a variety of the "case-within-a-case" issues typical of legal malpractice cases. Here, the issue was whether a reasonable Administrative Law Judge would have awarded fees at the higher Laffey rates if the attorney had sought them.
Adopting the approach of a number of non-District of Columbia precedents, the District Court ruled that the jury should perform its traditional function of applying law to facts, even when the earlier factfinder was a judge -- as long as it only involves an application of law to facts, not a decision on a disputed issue of law. Under this approach, the Court simply instructs the jury on the legal aspects of the case, and then leaves it to the jury to decide what a reasonable fact-finder would have concluded if the attorney had not been negligent.
Finally, the Court considered whether the jury may be assisted by expert testimony in making that assessment. Citing precedent from the Second Circuit, Virginia, and California, the District Court ruled that no, the parties experts would not be permitted to testify on this, and invade the jury's function by reaching the ultimate question of whether a petition for Laffey rates before a reasonable ALJ would have been successful.
The District Court acknowledged that there is a fine line between an expert's testimony on why an attorney's failure to petition for Laffey rates constituted a breach of the standard of care, and expert testimony on whether a reasonable ALJ would have awarded Laffey rates, however "[a]lthough the distinction may be subtle, it is one that must be drawn."
This decision provides a framework for future legal malpractice cases to help properly delimit the respective roles of the parties' experts, the jury, and the Court.
Fire cause and origin expert excluded by Maryland federal judge under Daubert analysis
In Fireman's Fund Insurance Company a/s/o Mangione Family Entpr. v. Tecumseh Products Co., et al., Civil Case No. JKB-09-2811 (D. Md. Mar. 2, 2011), the United States District Court for the District of Maryland excluded plaintiff's causation expert for failing to meet the generally accepted standards for fire investigation and failing to satisfy the requirements set out in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and its progeny, which resulted in the Court granting summary judgment for defendants.
On November 13, 2006, the Hilton Garden Inn in Owings Mills, Maryland suffered a fire and resulting damage of approximately $100,000 which plaintiff, Fireman's Fund Insurance Company paid pursuant to an insurance policy issued to Mangione Family Enterprises, the hotel owner.
As Mangione's subrogee, Fireman's Fund retained two certified fire investigators to determine the cause of the fire. After an investigation, the first expert concluded that the fire originated in the heat pump room and was caused by an undetermined failure or malfunction of the heat pump. Plaintiff's second expert, Kenneth McLauchlan, was retained to determine the exact cause of the hypothesized failure of the heat pump.
The chief building engineer reported that other heat pumps had malfunctioned and that the compressors had to be replaced regularly. McLauchlan concluded that the heat pump was the only plausible source of the fire and took possession of three heat pumps from the hotel, including, the "subject" heat pump that caused the fire, and two exemplar pumps (a working heat pump and a similarly damaged heat pump). McLauchlan examined and compared the three pumps and concluded that a manufacturing defect caused the compressor failure which caused the fire.
Defendants moved to exclude McLauchlan's testimony and the Court agreed. The Court concluded that under Daubert and its progeny, the methodology McLauchlan employed to reach his conclusions was unreliable. In particular, the Court held that NFPA 921, the generally accepted standards for fire investigation, instructs the investigator to collect data about the fire "by observation, experiment, or other direct . . . means, to analyze the data objectively and without speculation, to develop a hypothesis based solely on the data collected, to test the hypothesis by comparing it to all known facts, and to repeat the process until all feasible hypotheses have been tested. Until these steps are completed, NFPA 921 unambiguously requires an investigator to list the cause of the fire as undetermined."
The Court focused on the testing requirements under Daubert, noting that the failure to properly test a hypothesis is often grounds for excluding expert testimony. Also, the expert must rule out alternative hypotheses. Further, experts are required "to demonstrate that objects and materials are capable of behaving in the manner they hypothesize under the conditions of the event in question."
Even though McLauchlan's report had a section titled "Methodology", it failed to describe the tests utilized in forming his hypothesis. The Court found that McLauchlan had formed his hypotheses through speculation, merely relying on similar damage between the exemplar and subject heat pumps, having never tested his hypothesis, instead deriving his final hypothesis from his observations of the exemplar heat pumps, rather than testing it against them. The Court determined that McLauchlan's sample size of one being insufficient to rule out an otherwise plausible hypothesis. Also, McLauchlan failed to test and exclude a plausible alternative explanation for the fire. Consequently, in excluding McLauchlan's testimony, the Court held that McLauchlan did not meet the generally accepted standards of fire investigation set out in NFPA 921 and did not satisfy the requirements of testing and ruling out other hypotheses as required by Daubert and its progeny. Since Plaintiff's other expert relied upon McLauchlan's findings in formulating his opinions, the Plaintiff's were left without an expert to testify as to causation and the Court granted defendants' motion for summary judgment.
Posted by Robert Anderson on 05/29/2011 at 03:09 PM
Expert Witness Issues
Virginia Supreme Court reverses $1,750,000 jury verdict due to errors in admitting expert testimony
In CNH America, LLC v. Smith, No. 091991 (Va. Jan. 13, 2011), the Court reversed a jury verdict of $1,750,000 in a product defect case, on the grounds that the plaintiff's expert testimony was not based on an adequate foundation. The Court remanded the case for a full retrial on the merits.
The plaintiff had been injured when a hose on his newly-purchased disc mower exploded and injected burning hydraulic fluid into his hand. The injuries required five surgeries, including the partial amputation of the middle finger on his right hand.
The plaintiff filed suit against the manufacturer and dealer of the mower, alleging negligence, strict liability, failure to warn, and breach of express and/or implied warranties.
On appeal, the Virginia Supreme Court found both of the plaintiff's liability experts had testified based on inadequate foundation. One expert based his opinion that the hose had a manufacturing defect solely on the failure of the hose itself. The Court held that it was insufficient for this expert to base his opinion upon the premise that because the hose failed, it was the result of a manufacturing defect. Further, the expert admitted that he failed to perform tests that could have determined whether the hose had the defect.
The second expert admitted that he was not an expert in the hydraulic systems of mowers and had no experience in the design or manufacture of mowers or any other agricultural equipment. The Court noted that "An expert's qualifications must correlate to the opinions for which the expert is being offered. . . . the fact that a person is a qualified expert in one field does not make him an expert in another field, even if they are closely related." Further, the trial court ruled that the second expert's testimony was to be restricted to hydraulic systems generally and was not supposed to include opinions specifically about the particular mower at issue. Yet, that expert's testimony went far beyond the trial court's limitations.
David B. Stratton
on 01/20/2011 at 02:23 AM
Expert Witness Issues
Countering A Plaintiff’s Counsel’s Minimal Expert Witness Disclosures in Lead Paint Litigation
In the Jamal Logan v. LSP Marketing Corp., et al., the Court of Special Appeals upheld the trial court's granting of an order in a lead paint case precluding all but one of plaintiff's 12 experts as a sanction for failure to comply with Md. Rule 2-402(g) (i.e. failing "to state the subject matter, substance of the findings/opinions, and summary of grounds for each opinion; and produce any reports, to which the expert is expected to testify.")
Defendant's interrogatories requested information as to Plaintiff's experts. When Plaintiff did not respond to the interrogatories within the time prescribed, defense counsel made a good faith effort to resolve the dispute. Plaintiff's counsel eventually submitted its answers to interrogatories, but failed to provide any substantive information. Not having received sufficient or satisfactory information, Defendant moved to dismiss/compel. The Court compelled Plaintiffs to supplement their responses, but Plaintiff's counsel again responded vaguely and did not produce any reports. Consequently, Defendant moved for sanctions to exclude the experts or dismiss. The Court precluded all but one expert. As a result, Plaintiff was unable to put on a prima facie case resulting in the Court granting Defendants motion for summary judgment.
This opinion reiterates the expert designation requirement, specifically,
Plaintiff's answers to interrogatories did not comply with Rule 2-402 because he failed to include the substance of the experts' findings and opinions, as well as a summary of the grounds for each expert's opinion. For example, Plaintiff listed Mark Lieberman as a vocational rehabilitation expert who would testify "as to the vocational impact and loss of potential earning capacity of lead paint poisoning on the Plaintiff(s)." Although Plaintiff stated that Lieberman would "base his opinions on a review of the medical records, school records, other expert reports and depositions," Plaintiff did not state how Lieberman believed his earning capacity would be affected. In addition, Plaintiff listed 12 individuals, 10 of whom were located out-of-state, as experts in pediatric lead poisoning, who would "testify to the extent and permanency of the minor Plaintiff?s injuries due to exposure to lead paint." These answers failed to disclose, however, what each expert would opine as to the extent and permanency of the injuries, which might range from 0% to 100%. Plaintiff stated that all 12 experts were expected to "testify to the probable source of the lead exposure," but he did not include what each expert would opine the probable source was, and why the expert expressed this belief. Moreover, the experts were to "testify that exposure to lead-based paint at all of the defendants' subject premises . . . was a substantial factor in the plaintiff's injuries," yet Plaintiff did not state the reasons for their findings. And, Plaintiff stated at the end of each expert designation that a written report "will be provided when available" or "as soon as it becomes available." But none were provided. "Based upon Plaintiff's "boilerplate" expert designations, it was reasonable for the court to infer that the excluded experts' testimonies would be duplicative of Dr. Hurwitz's" (the only properly designated expert).
Also, noteworthy, the Plaintiff argued as a defense that Defendants could have taken the experts' depositions. However, since 10 experts were out of state the Court emphasized the importance of Plaintiff's compliance with Md. Rule 2-402(g) to provide a proper designation so that the Defendant did not have to unnecessarily incur the costs associated with depositions.
Posted by Robert D. Anderson on 01/04/2011 at 03:06 PM
Expert Witness Issues
Lead Paint Poisoning