Recent Eleventh Circuit Decisions Under Federal Rule of Evidence 702
The Eleventh Circuit has issued several recent decisions under Rule 702 of the Federal Rules of Evidence, further expanding the prodigious case law that finds its source in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). None of the cases breaks new ground, so far as this author can determine. The decisions instead walk established paths under Rule 702, confirming doctrinal conclusions that have been reached before. Nor do these cases treat appellate issues — apart from reciting the applicable standard of review. Given Daubert’s prominent role in civil litigation, though, we thought it might be valuable to readers to digest these cases here.
(1)
The Eleventh Circuit found itself working with the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD) in Long v. Raymond Corp., 2007 WL 2376785 (11th Cir. Aug. 21, 2007). The case involved a forklift accident. The Long court affirmed the exclusion under Rule 702 of a plaintiff’s industrial safety expert who, according to the district and appellate courts, was unqualified to give expert testimony on two key elements of the plaintiff’s AEMLD claim. In particular, the district court ruled that the witness was not qualified to testify: (1) that the plaintiff’s injuries would have been eliminated or in some way reduced by an alternative design; or (2) that the utility of the alternative design outweighed the utility of the design actually used. The Eleventh Circuit found no manifest error in this determination. Because the plaintiff lacked any other proof on these AEMLD elements, the appellate court also affirmed the consequent judgment as a matter of law for the manufacturer.
(2)
A military plane crash led to the negligence and strict liability suit of Ferguson v. Bombardier Services Corp., 2007 WL 2128167, Prod. Liab. Rep. (CCH) ¶ 17, 777 (11th Cir. July 26, 2007). The Eleventh Circuit here affirmed the exclusion of a plaintiff’s expert who proposed to testify that the airplane’s autopilot system was defective.
Ferguson’s reasoning is difficult to synopsize clearly. It is probably more effective to reproduce the relevant part of the discussion:
Malley [the plaintiffs’ expert] was prepared to testify that information in the flight data recorder indicated that the autopilot system was not safely integrated into the [plane]. On cross-examination, however, Malley admitted that the data supporting his testimony was equally consistent with the [plaintiffs’] theory that the aircraft was improperly loaded and operating beyond its center of gravity limits. In other words, Malley admitted that if the plane was too heavy, this would have also produced the oscillations in the flight data recorder that Malley thought were indicative of a defect in the autopilot system.
. . . .
[T]he district court excluded Malley's testimony because it was predicated on the assumption that the aircraft was properly loaded. The district court concluded that such an assumption was belied by the evidence. Assuming that the district court was correct in concluding that the evidence established that the aircraft was most likely overweight, Malley's testimony was properly excluded. By his own admission, Malley's evidence concerning oscillations in the flight data recorder was entirely consistent with an improperly loaded aircraft. His proposed testimony, therefore, would do nothing to assist the trier of fact in understanding the evidence or determining a fact in issue and would be properly excluded under Fed. R. Evid. 702. As the district court recognized, the key question was whether the aircraft was properly loaded. If it was not, Malley's testimony does nothing to establish whether there was a defect in the autopilot system.
[T]here is no basis for determining that the district court's conclusion regarding the aircraft's weight was clearly erroneous. . . . The district court therefore did not abuse its discretion in excluding Malley's expert testimony.
(Emphases added.) The analysis seems a bit elliptical, its elements not in clear relation to one another, and its precise ground of decision debatable. Why did the shortcomings identified lead to an “assistance to trier of fact” exclusion? Do they not also undermine the reliability of the proffered testimony? We leave it to the reader to tease such things apart. In any event, the problems identified are of a type often seen under Daubert. Ferguson does suggest that expert analysis is suspect under Rule 702 when the witness’s assumptions disagree with established facts, and when the data beneath an expert’s work is equally consistent with conflicting explanations.
(3)
Finally, there is Phillips v. Am. Honda Motor Co., 2007 WL 1892179 (11th Cir. July 3, 2007). This case, too, found the Eleventh Circuit affirming the exclusion of a plaintiff’s expert in an Alabama products case. More specifically, Phillips ruled that various flaws in an expert’s testing rendered his method unreliable.
The Phillips plaintiff claimed he was burned when excessive heat accumulated near the foot positions of his all-terrain vehicle (ATV). His expert concluded that the ATV was unreasonably dangerous. He based this conclusion on tests he conducted of the ATV in question, and of a competitor’s product. In these tests, the expert measured the heat in the foot position with an instrumented dummy, and ran the vehicles outdoors, more or less in the conditions in which the plaintiff had used his.
The Eleventh Circuit found the testing unreliable for several reasons. First, the expert had not shown that the dummy reliably substituted for a human foot. He “produced no data showing that the conductive and heat-retentive properties of the dummy’s foot were similar to those of a human foot.” “Nor did he show a reliable way to extrapolate from the temperature readings on the dummy’s foot to the comparable temperatures on a human foot.”
Second, the expert “failed to control or account for alternative sources of temperature variation.” “[T]emperature measurements fluctuated significantly throughout his tests,” the court explained. This was true both during a given test, and between rounds of testing. For instance, the average ambient temperature was ten degrees cooler during tests of the competitor’s ATV than during tests of the defendant’s ATV.
Third, the expert gave “no reliable explanation” for “irregularities” and “abnormalities” in his resulting data. (One such “irregularity” was that “the temperature inside the left boot exceeded the temperature outside the left boot even though the outside of the left boot was closer to the source of the heats [sic].”)
The court acknowledged that “an expert’s failure to account for every” variable will “usually affect the analysis’ probativeness, not its admissibility.” Nonetheless, it is possible for analyses to be “so incomplete as to be inadmissible.” Here, the expert’s failure to address the matters just discussed were “especially problematic . . . because the number of trials in [his] tests were so low.” The expert in fact “performed no error-free test” of the product in question.
“Thus, the district court did not abuse its discretion in excluding [the expert’s] testimony because his methodology was unreliable.”