9th Circuit Reverses Exclusion of Defense Expert on Hedonic Damages
In overturning a $6.7 million jury verdict, the Ninth Circuit has reversed the trial court's decision excluding testimony from the defendant's damages expert in a wrongful death case. The opinion would appear to stand for three propositions: (1) a ruling that one expert's testimony is reliable does not necessarily imply that an opposing expert's contrary opinion is unreliable; (2) there may be some validity to the "goose and gander" rule; and (3) the sky would not fall if some shaky expert testimony happened to reach a jury's ears. See Dorn v. Burlington N. Santa Fe R.R., No. 03-35071 (9th Cir. Feb. 7, 2005) (Kleinfeld, Callahan, & Bertelsman, JJ.).
The district court in Dorn had overruled a Daubert challenge to the plaintiff's expert on hedonic damages. When it came time for defendant to offer its own expert's critique of the plaintiff's damages analysis, plaintiff's counsel objected on the ground that plaintiff's expert had already been found to be testifying reliably. The trial court sustained the objection.
On appeal, the Ninth Circuit did not reach the admissibility of the plaintiff's expert testimony, though the panel did note its concern that the plaintiff's expert's methodology was not in total harmony with his numerical conclusions (because his putative method was to measure market premiums for safe products, safe occupational conditions, etc., whereas the expert's actual damage estimate commingled those market-based figures with other, non-market numbers derived from government safety expenditures, etc.). The panel did conclude, however, that the defendant's expert testimony should not have been excluded merely because the plaintiff's expert's opinion had been found sufficiently reliable to survive Daubert scrutiny. It was for the trier of fact to resolve the experts' differences, the appellate court said.
The court also made this very intriguing observation (emphasis ours): "The Supreme Court in [Daubert] was not overly concerned about the prospect that some dubious scientific theories may pass the gatekeeper and reach the jury under the liberal standard of admissibility set forth in that opinion; indeed, the Court said, 'Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'"
One panel's take? Or a signal to lighten up a little on the gatekeeping? Maybe time will tell.
Meanwhile, we wonder how much damage that defense expert really would have done, if the jury had heard his testimony. The plaintiff has now lost a sizeable verdict and will have to retry the case. The reversal was attributable in part to other errors, but the Daubert error was held not to be harmless. Perhaps the wisest course, sometimes, is to consider whether an unsound objection is worth making, if the net effect of having it sustained will be to unravel what might otherwise have been a victory untainted by error.
The district court in Dorn had overruled a Daubert challenge to the plaintiff's expert on hedonic damages. When it came time for defendant to offer its own expert's critique of the plaintiff's damages analysis, plaintiff's counsel objected on the ground that plaintiff's expert had already been found to be testifying reliably. The trial court sustained the objection.
On appeal, the Ninth Circuit did not reach the admissibility of the plaintiff's expert testimony, though the panel did note its concern that the plaintiff's expert's methodology was not in total harmony with his numerical conclusions (because his putative method was to measure market premiums for safe products, safe occupational conditions, etc., whereas the expert's actual damage estimate commingled those market-based figures with other, non-market numbers derived from government safety expenditures, etc.). The panel did conclude, however, that the defendant's expert testimony should not have been excluded merely because the plaintiff's expert's opinion had been found sufficiently reliable to survive Daubert scrutiny. It was for the trier of fact to resolve the experts' differences, the appellate court said.
The court also made this very intriguing observation (emphasis ours): "The Supreme Court in [Daubert] was not overly concerned about the prospect that some dubious scientific theories may pass the gatekeeper and reach the jury under the liberal standard of admissibility set forth in that opinion; indeed, the Court said, 'Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'"
One panel's take? Or a signal to lighten up a little on the gatekeeping? Maybe time will tell.
Meanwhile, we wonder how much damage that defense expert really would have done, if the jury had heard his testimony. The plaintiff has now lost a sizeable verdict and will have to retry the case. The reversal was attributable in part to other errors, but the Daubert error was held not to be harmless. Perhaps the wisest course, sometimes, is to consider whether an unsound objection is worth making, if the net effect of having it sustained will be to unravel what might otherwise have been a victory untainted by error.
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