Hold Daubert Hearings, Says Mississippi High Court

Last week, a sharply divided Mississippi Supreme Court signaled that trial courts risk reversal if they exclude expert testimony without holding a Daubert hearing. See Smith v. Clement, No. 2006-CA-00018-SCT (Miss. Oct. 4, 2007). The testimony in question was offered on summary judgment, in an affidavit from the plaintiffs' mechanical engineer, to prove that a school bus fire was caused by defects in the bus's propane fuel system. The trial court struck the testimony and awarded summary judgment to the defendant. Although the trial court did hear argument on the summary judgment motion, it held no hearing specifically devoted to the evidentiary issue. As a result, the plaintiffs were denied sufficient opportunity to defend and develop the expert's opinion, a five-justice majority held. From the opinion:

Prior to any Daubert determination or other decision regarding the proffer of expert evidence, the parties must be afforded the opportunity to be heard. We generally recommend that the trial court conduct an in limine hearing specifically on the subject, as this procedure will result in full briefing and argument by the parties regarding the proposed expert testimony. This will not only assist the trial court in its function as evidentiary gatekeeper; it will provide a fuller record for an appellate court should the parties contest the evidentiary ruling. While an in limine hearing may not be necessary in all cases, it does provide the most efficient manner of addressing the issue in many cases.

Four justices dissented, noting that the plaintiffs had an opportunity to address the evidentiary points at oral argument on the summary judgment motion.

In suggesting that it exalts form over substance to require a separate, dedicated Daubert hearing, the dissenters might seem to have a point. The justices' deeper disagreement may have been over the degree to which Daubert should come into play on summary judgment at all. The majority approvingly cited Cortes-Irizarry v. Corporacion Insular De Seguros, 111 F.3d 184 (1st Cir. 1997), for the proposition that Daubert's gatekeeping regime should be employed only with "great care and circumspection" at the summary judgment stage.