USC Notches Important Courtroom Victory

Posted on December 3, 2012 by Mark Roth

Just days after ending a disappointing football season, USC scored a major legal victory in the California Supreme Court.  In Sargon Enterprises v. University of Southern California, 2012 DJAR 15846, a Court of Appeals ruling permitting expert testimony on potential lost profits was reversed.  This case is significant as it brings California law on the admissibility of expert testimony more in line with the federal standard. 

The case involved a small dental implant company suing USC for breaching a contract to clinically test a newly patented product.  The Supreme Court held that the trial judge had a duty as a “gatekeeper” to exclude speculative expert testimony that the dental implant company suffered more than $1 billion in lost profits had USC properly completed the clinical testing.  The Court’s rationale for excluding such speculative expert testimony was explained by distinguishing what would have happened, as opposed to what might have happened.  In the spirit of the holiday season, the decision may be summarized as follows-“if ands or buts were candy and nuts, every day would be Christmas.”      

 

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Arizona Adopts Federal Daubert Standard for Admissibility of Expert Testimony

Posted on August 20, 2012 by Kevin Bush

Over the last few years, the Arizona legislature and Arizona courts have been dealing with the implementation of Federal “Daubert” standards for the admissibility of expert testimony in Arizona state courts. After initial legislative action was held unconstitutional, the Arizona Supreme Court ultimately amended Arizona Rule 702, effective January 1, 2012, to conform to the Federal rule. The amended Rule 702 states:

“A witness who is qualified as an expert by knowledge, skill, expertise, training, or education may testify in the form of an opinion or otherwise if:

(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts of the case.”

By amending Arizona Rule 702 to conform to the Federal Rule, the Arizona Supreme Court has, in effect, implemented what is known as the “Daubert” standard applicable in all Federal cases. Although the amendment lacks any specific language as to its retroactivity, procedural rules generally apply even to lawsuits filed before the rule’s enactment, and applies both in civil and criminal cases. 

Amended Rule 702 now places “gatekeeper” responsibilities upon the trial judge as to the introduction of expert testimony. While there is little reported Arizona case law on the Daubert issue, there are thousands of Federal cases ruling on various aspects of the Daubert/Rule 702 standards, which will be considered as persuasive authority by the Arizona courts.  In essence, under the Daubert standard, an expert must explain his methodology of reaching an opinion, and demonstrate in an objective, verifiable way, that the expert has chosen a reliable method, and followed it. Factors as to whether an expert has followed a reliable method include testing to replicate a failure, peer review supporting the theory, and general acceptance by the relevant expert community as to the methodology and conclusions reached. Expert areas involving engineering and science will likely be most affected by the amendment, although most qualified experts are familiar with the Daubert review standards and are prepared to provide opinions that will withstand Daubert review. 

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New York Court Rejects Defendant's Fire Modeling

Posted on July 12, 2010 by John R. Slattery

Subrogation professionals should be aware of a recent opinion in New York where computer fire modeling utilized by the defendant's expert was held to be inadmissible.   In Santos v. State Farm Fire & Casualty Co., No. 000790/07 (N.Y.Sup. Ct. Jun. 28, 2010), a trial court held that the defendant had not presented sufficient evidence that computer fire modeling was generally accepted as reliable in the fire investigation community. 

In larger fire losses, computer fire modeling can be a useful tool that fire experts use to assist in evaluating hypotheses related to fire origin and fire spread.  Fire modeling is also used for illustrative purposes, such as presenting an origin and cause investigator's opinions to a jury.  Although they can be helpful, fire models have their limitations.  NFPA 921, the recognized guide for fire investigations, cautions: "[t]o conduct valid modeling and testing it is important that the investigator gather data that is as accurate and complete as possible."  Fire models are generally only as good as the accuracy of the data that is used in the model. 

The Santos decision is surprising in light of the fact that several federal courts have held that fire modeling is reliable.  For an expert opinion to be admissible in federal court, the opinion must pass the rigors of the Daubert standard.  In federal court, expert testimony must be both relevant and reliable, which entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue. 

In state courts in New York, expert opinions must pass the Frye test, which is viewed as a more liberal standard than Daubert.  Under the Frye test, expert testimony based on scientific principles or procedures is admissible only if a principle or procedure has gained general acceptance in its specified field.  Here, the court found that the defendant only presented evidence that computer fire modeling was generally accepted in the regulatory and design community, but failed to meet the burden of demonstrating that modeling is generally accepted in the fire investigation community. 

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