Three immunology experts testified. The testimony of the first was allowed on reliability factors. Another was allowed on reliability factors, but denied on experiential grounds. A third (for defendant) was allowed on reliability grounds.
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U.S. Circuit Judge Richard A. Posner in Chicago excluded damages expert witness testimony in Apple v. Motorola (1:11‐cv‐08540), ruling that neither Apple nor Motorola have been able to prove damages and will not be allowed to refile a claim. Regarding expert testimony, Judge Posner said:
The biggest challenge to the judge at a Daubert hearing, if as in this case the subject matter of the proposed expert testimony is within the judge’s comprehension, is to distinguish between disabling problems with the proposed testimony, which are a ground for excluding it, and weaknesses in the testimony,
which are properly resolved at the trial itself on the basis of evi‐
A Florida House panel has approved a bill that would lead to tougher standards for expert witnesses. HB 243 would replace the Frye standard with the Daubert standard, bringing Florida more in line with expert testimony requirements in federal courts.
Read more: news-press.com.
In Daubert: Very Convoluted, Usually Confusing to Many, Nevertheless Elegant, Armand Rossetti writes that it is the expert witness in the first instance, and not the court as gatekeeper, who is the judge of what resources to choose to assist her in forming an opinion. It is the expert who will initially filter out prejudicial information as being irrelevant. The Court then uses Rule 703 to assure the reliability of evidence by vetting the bases that forms an expert’s testimony.
Let’s take environmental asbestos infiltration an example, the fact that an air sampling study is an associational (or case) study affecting a few subjects, rather than a higher evidence based epidemiological study that affects several hundred subjects should not bar an expert from using the case study to inform her opinion about the dangers of asbestos release in the environment. The fact that a single case study published in a peer reviewed journal fails to establish causation under a Rule 703 review should go to the weight that the jury will give such evidence, but it does not mean that an expert cannot eventually rely upon it in part to form an ultimate opinion.
Of course, if a single case study were the only source of evidence, then the court might be reasonable in immediately performing a Rule 702 analysis to disqualify the entire testimony. However, the fact that an expert has relied upon several case studies to form an opinion, and has not used even one single epidemiological study should not in itself disqualify that expert’s testimony.
In Daubert: Very Convoluted, Usually Confusing to Many, Nevertheless Elegant, Armand Rossetti writes:
Daubert also requires that an expert witness has to assist and not to confuse the Trier of fact. If the Jury (Trier of fact) can understand whether a substance in particular is able to cause an injury and whether an injury resulted from that particular substance, an expert opinion would be redundant and unnecessary.
On the other hand, Rule 403 requires a Court to balance the probative value against the prejudicial effects of expert witness testimony. Courts should not confuse Rule 403 with Rule 703.
In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:
Until the law on the issue settles there are some practical steps counsel should take to address hybrid witnesses:
(1) Make sure that the witness really is a “hybrid” witness. The fact that the witness happens to be a treating physician, for instance, might not be the end of the analysis. See, e.g., Kirkham v. Societe Air France, 236 F.R.D. 9, 12-13 (D.D.C. 2006) (noting that a treating physician may be “retained or specially employed” under Rule 26 and thus an expert from whom a report is required if, among other things, they base opinions on something other than their own examination of the party such as the medical records of another physician or if they are compensated or expect compensation for their time preparing to testify);
In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:
Still other courts hold that no report is required from a hybrid witness, regardless of the nature of the opinion testimony they will provide, if they were not “retained or specially employed” to provide expert testimony. E.g., Denson v. Northeast Ill. Regional Commuter Railroad Corp., No. 00 C 2984, 2003 WL 1732984 at *1 (N. D. Ill. Mar. 31, 2003) (“There is no indication that any of the three treating physicians from whom plaintiff may elicit expert opinions was retained or specially employed for that purpose. Therefore, the report requirement does not apply for their testimony.”).
Though hybrid witness issues most often arise with respect to testimony from treating physicians, they also plainly can arise in other contexts as well. See, e.g., St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 246 F.R.D. 56, 59 (D.D.C. 2007) (allowing a hybrid witness to testify as to “information gained in his role as Executive General Adjuster with respect to the incident in question” but not to “offer his independent opinions regarding causation, or damages assessments made either after litigation commenced or independent of his assessment of damages as a function of his job as an insurance adjuster”).
In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:
Courts do not agree on this point. Some hold that a hybrid witness who did not prepare an expert report may testify only as to those matters on which they are testifying as a fact witness. E.g., Bynum v. MVM, Inc., 241 F.R.D. 52, 54 (D.D.C. 2007) (holding that a treating physician “‘may describe what she has seen, describe and explain her diagnosis and the treatment she prescribed'” but without a Rule 26 report “‘a treating physician may not testify as to issues of causation, foreseeability, prognosis, and permanency.'” (further citations omitted)).
Other courts hold that a report under Rule 26 is not required if the witness’s proposed opinion testimony, regardless of its substance, arises solely from the witness’s personal knowledge. E.g., Martin v. CSX Transp., Inc., 215 F.R.D. 554, 557 (S.D. Ind. 2003) (“a physician ‘whose proposed opinion testimony will come from his knowledge acquired as a treating physician, is not someone from whom a Rule 26(a)(2)(B) report is required.'” (further citation omitted)).
In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:
Though generally straightforward, the expert disclosure provisions of Rule 26 do contain “gray” areas with respect to which counsel should be alert. For instance, parties must disclose the identity of all witnesses they might use at trial to present evidence under Rules 702, 703 or 705 of the Federal Rules of Evidence. Fed. R. Civ. P. 26(a)(2)(A). If such a witness either is retained or specially employed to provide expert testimony, or if the witness’s job duties as a party’s employee regularly involve giving expert testimony, the disclosing party also must provide a written report prepared and signed by the expert containing certain information specified in Rule 26(a)(2)(B). Whether and to what extent the report requirement applies to a non-retained witness who also happens to qualify as an expert on some topic, a so-called “hybrid” witness, is not as clear.
The 1993 Advisory Committee Notes to Rule 26 do not provide much guidance. They note that the report requirement of Rule 26 “applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony.” Id. advisory committee’s notes (subdivision (a)(2)). Thus, a “treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.” Id. What is not as clear, though, are the topics on which a non-retained witness who otherwise could provide expert opinion testimony (such as a treating physician), but who did not prepare a Rule 26 report, may testify at trial.
In Daubert: Very Convoluted, Usually Confusing to Many, Nevertheless Elegant, Armand Rossetti writes:
Pretrial Daubert hearings are essentially motions in limine that ultimately decide whether an expert is qualified, and whether that expert: 1) has based an opinion on sufficient facts or data; 2) will be able to testify using “reliable principles and methods,” and; 3) has applied the principles and methods reliable to the particular facts of a given case.
The Daubert factors are based Rule 702 of the Federal Rules of Evidence, which is used to examine an expert’s testimony as a whole. In addition under Rule 703, experts may reasonably rely on documents and information that may be inadmissible during trial. It is also Rule 703 that forms the basis for inquiry, concerning the reliability of any data that supports expert testimony. Furthermore, Rule 703 relaxes the requirement that experts need to acquire personal knowledge about the matter to which they testify. Finally, Rule 703 has little to do with whether an expert’s testimony, as a whole, meets Daubert standards. That determination rests with Rule 702.
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