"Because I Said So": Expert Opinions Derailed by Ipse Dixit Rulings

 

A challenge to an expert opinion based on ipse dixit grounds differs from many Daubert motions in that is does not contest the expert’s qualifications but instead solely attacks the expert’s opinion as conclusory. Since the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., lower federal court rulings reveal you must do more than just spend a lot of money on a well-credentialed expert and then rely on nothing more than a one-dimensional opinion as the basis of your case. To survive summary judgment and prevail at trial, plaintiffs must produce experts that adequately explain how they reached an opinion and how the evidence available in the case scientifically establishes liability. Without a thorough analysis of the evidence, courts have repeatedly stated that they are unwilling to simply take your expert at his word.


Recently, the United States District Court for the Middle District of Florida in Florida Insurance Guaranty Association v. National Presto Industries Inc., 6:2012-cv-00160 (July 19, 2013) granted summary judgment in a products liability case where the expert was found to be qualified but his opinion amounted to nothing more that ipse dixit (Latin for “he himself said it”). The case involved a fire that originated near or within a Presto deep fryer. Although the plaintiff's expert performed a valid scientific test on an exemplar deep fryer and offered a scientific opinion that the fryer at issue in the case must have failed as a result of the same conditions which created a fire in the exemplar, the expert did not provide any opinions about (or testing on) the bimetallic element on the subject fryer. The court stated:

  • [Plaintiff’s expert] nevertheless concludes that [the fryer] must have failed, but when pressed in deposition, he was unable to articulate any basis for this conclusion.
  • As such, his testimony amounts to nothing more than inadmissible ipse dixit, as the only connection between the conclusion and the existing data is the expert's own assertions.


The court then rejected plaintiff's additional arguments and attempts to cite other evidence. In an effort to overcome summary judgment, plaintiff pointed to the fact “(1) that there is evidence the Fryer was low on oil when the fire started--and the manual lacked sufficient warnings of the attendant dangers of low-oil levels, (2) the power cord became hot during use, and (3) that the Fryer was plugged-in at the time of the fire.”


Similarly, the United States District Court for the Southern District of New York in 405 Condo Associate LLC v. Greenwich Insurance Co. 2012 WL 6700225 (S.D.N.Y. December 26, 2012) granted the defendant insurance company’s motion to bar expert testimony on the basis that it was nothing more than ipse dixit. The case involved an issue of whether the damage to the subject property was caused by wind (and therefore covered by the insurance policy) or by rain (therefore not covered by insurance).


In 405 Condo, the defendant did not challenge the plaintiff expert’s qualifications. Instead, the defendant prevailed on its motion by challenging the reliability of plaintiff’s expert testimony. Although the expert opined “within a reasonable degree of engineering certainty that the roof and flashing were first damaged by wind, and that the water penetration and damage were subsequent to the wind damage,” the court held that the expert’s opinion failed to meet the reliability requirement of Rule 702. The expert based his opinion on a weather report taken at JFK airport — thirteen miles away from subject property and found that the elevated wind speeds resulted in damage to the roof flashing, allowing rainwater to enter the building.


The court found that plaintiff’s expert opinion was inadmissible because the expert report:


does not mention the type of material used in the flashing or attempt to approximate the wind speeds necessary to cause the flashing to peel back. This renders [the expert’s] testimony speculative. Second, [the plaintiff’s expert report] contains no methodology for differentiating wind damage caused by Hurricane Irene from prior damage or rain damage alone. Third, that [plaintiff’s expert] did not examine the roof in person until May 31, 2012 — eight months after the damage allegedly occurred and after repairs had been completed — calls into doubt the reliability of his testimony given the absence of a clear methodology or relevant data.
 

The Southern District of New York concluded by stating that there is “simply too great an analytical gap between the data and the opinion proffered.”


Both of these recent federal opinions are examples of courts’ growing unwillingness to take an expert at his word, no matter how overwhelming the independent evidence may be or how well-credentialed the expert. Tests on exemplars and the use of other analytics may be useful in establishing liability and convincing a jury to rule in your favor, but they will likely not be enough to carry you past dispositive motions. Experts must examine the evidence in the case and draw conclusions based on that evidence.
 

USC Notches Important Courtroom Victory

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.”      

 

Arizona Adopts Federal Daubert Standard for Admissibility of Expert Testimony

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. 

New York Court Rejects Defendant's Fire Modeling

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.