Kentucky Supreme Court Case Explores Standard of Review

From Barry Miller, our Kentucky correspondent:

Miller v. Eldridge, No. 2001-SC-0628-DG (Ky. Oct. 21, 2004), arose from a claim of medical malpractice against Dr. Miller. Plaintiff alleged that Dr. Miller negligently conducted an angiography, causing the death of his 31-year-old wife. In the course of the angiography, Dr. Miller had to pass a guidewire through a possibly occluded artery. An expert for plaintiff, Dr. Skinner, stated his theory that during the operation Dr. Miller passed the guidewire through a clot, causing the clot to break up. Dr. Skinner also believed that a later injection of dye by Dr. Miller caused some of the pieces of the clot to travel against the normal flow of blood until they lodged in an artery near the brain, and formed an occlusion that caused death.

Dr. Miller retained Bruce Taylor, a biomedical engineer and a Ph.D. in physiology, to challenge plaintiff’s expert. Taylor stated that Dr. Skinner’s theory violated fundamental laws of movement, and developed computer models and “benchtop” models to illustrate the flaws he saw in that theory. Plaintiff sought a Daubert hearing. After that hearing, without entering findings of fact, the trial court found that Taylor could testify but that he could not use the benchtop models. After the jury returned a defense verdict, plaintiff appealed on the grounds that Taylor’s testimony should not have been permitted under Daubert.

The Court of Appeals reversed the trial court because of Taylor’s testimony. The Supreme Court reversed and upheld the trial court after a scholarly discussion of the proper standards for review in a Daubert action:

(1) The trial court’s decision about the reliability of the expert’s testimony is fact-based, and therefore must be reviewed under a clearly-erroneous standard.

(2) The decision whether the expert’s testimony is admissible because it will assist the jury must be reviewed under an abuse-of-discretion standard.

The Court also addressed the timing of each review: “Because the findings of fact that Daubert rulings are based on are preliminary in nature-the ultimate decision as to admissibility depends on these findings-an error that is alleged in the trial court's findings of fact must be reviewed for clear error before the appellate court can reach the discretionary aspects of the trial court's decision.”

The Supreme Court said that the Court of Appeals’ error proceeded from the fact that the trial court had not entered findings of fact on the Daubert hearing. Thus, though the Court of Appeals purported to conduct a review for clear error, it actually conducted a de novo review by “reviewing Taylor’s written report and his trial testimony, then applying Daubert’s relevancy and reliability factors to the testimony.” This approach failed to give proper deference to the trial court, which is in the best position to evaluate evidence: “Appellate courts must recognize the unfortunate but necessary corollaries of deference to the trial court: that it is possible for the trial court to rule contrary to what an appellate court would rule without abusing its discretion or being clearly erroneous, and that an appellate court is powerless to disturb such rulings.”

The Supreme Court also criticized the Court of Appeals for relying too heavily on the Daubert factors, noting that Daubert itself states that the factors do no comprise an exclusive list. Thus, that Taylor’s theory had not been peer-reviewed, or tested on human subjects did not compel the exclusion of his testimony. Taylor developed his models to challenge Dr. Skinner’s theory, and Dr. Skinner’s theory relied upon a rare situation — material traveling in human arteries against the flow of blood. This made it not surprising that Taylor’s work was not reviewed, extensively tested, or generally accepted in the scientific community. Finally, the Court noted that Taylor’s testimony was not based solely on his computer or benchtop models, but also on his understanding of basic laws of motion.

Thanks to Barry for his thoughtful analysis.

What's especially interesting about this opinion, to us, is its take on the standard of review for "factual" questions addressed by the trial court in the course of its admissibility determination. As we have noted elsewhere, it may sometimes obscure understanding to lump all evidentiary issues reviewed on appeal under a one-size-fits-all "abuse of discretion" standard. Whatever nomenclature may be used for the standard of review, it seems to us that appellate scrutiny of truly factual determinations (e.g., did the expert actually receive his degree as claimed?) is necessarily conducted under a different logic from appellate evaluation of a trial court's reliability analysis (incoherent analyses may receive little deference). To us, it seems a little strained to call this latter issue "factual." But at least the Kentucky court has started to broach the issues in a more refined way.