Featured Expert Column –Judicial Gatekeeping of Expert Evidence
Even though Daubert v. Merrell Dow Pharmaceuticals, Inc. has been the law of the land for over two decades, questions about its scope and the responsibility of the district courts to serve as gatekeepers continue to abound. In Nease v. Ford Motor Co., a recent US Court of Appeals for the Fourth Circuit case, the district court allowed an engineer to testify as an expert even though he had never tested his hypothesis, had no examples of his hypothesis occurring in the real world (including in the instant case), and had relied on an outdated safety manual in forming his conclusions. This abdication of the district court’s gatekeeping responsibilities resulted in the admission of junk science masquerading as expert testimony and a $3 million jury verdict in the plaintiffs’ favor. The Fourth Circuit unanimously reversed in an opinion that strongly reaffirms Daubert’s breadth and importance.
In November 2012, plaintiff Howard Nease was driving his recently purchased, used 2001 Ford ranger pickup truck, with an odometer reading of approximately 116,000 miles. While traveling between 45 and 50 miles per hour, Nease realized that his truck did not decelerate when he took his foot off the pedal. Nor could he slow the truck by applying the brakes. To avoid injuring pedestrians or other cars, Nease drove the truck off the road and into a brick building. For approximately 25 to 30 seconds after the crash, the tires of the truck continued to spin until the engine shut down. Nease and his wife subsequently filed a products-liability suit against Ford Motor Company in a West Virginia federal court.
The Neases retained Samuel Sero, an electrical engineer, as an expert witness. Sero believed that the truck’s failure to decelerate was caused by contaminants that became lodged between a “speed control cable” and a “casing cap,” creating a “wedging effect” that prevented the throttle from closing.
To test his hypothesis, Sero used a borescope—a fiber-optic tube equipped with a light and camera that can be inserted into otherwise inaccessible areas. When he examined the Neases’s truck, he did not find any contaminants blocking the throttle. In fact, Sero discovered that the throttle’s speed-control guide tube moved freely. Notwithstanding this evidence, Sero maintained his hypothesis. In support of his conclusion, Sero pointed to gouges on the speed-control guide tube that he believed were left by abrasive material and contaminants stuck to the casing cap. Because the borescope could not precisely measure the amount of contaminants stuck in the casing cap, however, Sero could not determine whether such contaminants were sufficient to create a wedging effect.
In addition to his investigation of the engine, Sero relied on a 1987 safety report prepared by Ford that assessed certain risks that engineers should address in designing vehicles. According to Sero, the 1987 report established that the throttle for the 2001 Ford Ranger could be susceptible to a wedging effect. Contrary to Sero’s testimony, however, the 1987 report had been superseded by the time the 2001 Ford Ranger’s throttle was designed. The 1987 report, therefore, was a red herring.
Prior to trial, Ford filed a Daubert motion to exclude Sero’s testimony. The district court denied Ford’s motion, holding that Sero was qualified as an expert given his background in engineering and that he had applied standard engineering methodology to examine the throttle in the Neases’s truck.
At trial, Sero admitted that he did not find any contaminants actually wedged between the speed-control cable and the casing cap and that, at the time of his examination, the throttle worked properly. Sero further conceded that he had never actually observed the wedging-effect flaw in any post-crash vehicle that he had inspected. And perhaps most damning, he “was unable to distinguish between the video of the Nease borescope [from this case] and a borescope exam for a previous case in which [he] had testified that the speed control cable did not bind.” The jury nevertheless returned a verdict in the Neases’s favor in excess of $3 million.
The Fourth Circuit reversed. At the outset, the court addressed the Neases’s threshold argument that Daubert did not apply to the case. The Neases contended that Daubert applies only to “novel scientific testimony.” The Fourth Circuit rejected that contention for two reasons. First, the court explained that “Daubert itself makes clear that its application is not limited to newfangled scientific theory.” And second, contrary to the Neases’s suggestion, Kumho Tire Co. v. Carmichael established long ago that Daubert applies not only to scientific evidence but also to technical or other specialized knowledge, such as engineering.
The Fourth Circuit then faulted the district court for “not us[ing] Daubert’s guideposts or any other factors to assess the reliability of Sero’s testimony.” Instead, the district court incorrectly concluded that Ford’s criticisms of Sero’s expert testimony went to weight, not admissibility. And even though the district court conducted a Daubert analysis after trial in denying Ford’s Rule 50(b) motion, the Fourth Circuit held that this was too late because “Daubert ensures that expert evidence is sufficiently relevant and reliable when it is submitted to the jury.” The Fourth Circuit thus concluded that the district court abdicated its gatekeeping function.
On the merits, the Fourth Circuit held that Sero’s expert testimony was inadmissible under Daubert. Unsurprisingly, the Fourth Circuit criticized Sero for relying on the superseded—and thus inapplicable—1987 safety report. More generally, the Fourth Circuit stated that “[t]esting was of critical importance in this case” in light of Sero’s concession that he had never seen any post-crash vehicle with the wedging-effect problem. Given this concession, the Fourth Circuit found it especially troubling that Sero “conduct[ed] no testing whatsoever to arrive at his opinion.” Although recognizing that “Daubert is a flexible test and that no single factor, even testing, is dispositive,” the Fourth Circuit held that “Sero’s failure to test his hypothesis renders his opinions on the cause of [the] accident unreliable.”
In Nease, the Fourth Circuit reaffirmed the importance of Daubert in keeping junk science out of the courtroom. The Fourth Circuit made crystal clear that Daubert applies not only to “newfangled scientific theories” but also to run-of-the-mill cases involving automobile accidents. In addition, the Fourth Circuit instructed district courts that Daubert inquiries must be performed before the jury is exposed to the expert testimony at issue. Daubert, in other words, does not look favorably on post hoc gatekeeping. And in performing that gatekeeping role, district courts must look askance at attempts by experts to offer testimony that has never been proven reliable through either testing or real-world observations.