Federal Ninth Circuit Court of Appeal Limits the Application of the Daubert Test.

An expert with impeccable credentials, Martin Siegel, Ph.D., a professor of mechanical engineering at USC with over 33 years of experience in design, product development and product safety, was denied the opportunity to testify in a Central District case, Donovan McKendall v. Crown Control Corp.- et al. The Hon. David Kenyon, District Judge, granted a motion for summary judgment in favor of Crown Control Corporation (Crown) after concluding that he would exclude, as scientifically unreliable, the proposed testimony of McKendall’s product design expert, Siegel, because the plaintiff failed to show that Siegel’s testimony was based on sound scientific principles. On August 8, 1997, the Ninth Circuit Court of Appeal reversed the decision and remanded the case to the District Court.

In this case, the plaintiff was an employee of Levitz Furniture Company as a warehouseman. At the time of the accident, he was operating a stock picker, a type of forklift which removes large bulky furniture items from overhead racks in the warehouse for transport. The lift has a operator’s platform separate from the cargo platform. There was no barrier between the two. As the plaintiff was operating the stock picker, a sofa slid from the cargo area onto the operator’s platform, pinning his legs. Injuries included a broken leg and injured knee and back.
McKendall alleged that the stock picker was defectively designed because it did not include a barrier between the cargo and the operator, further he claimed that there should have been an interlock so that the unit would not operate unless the barrier was in place. Siegel was declared as an expert to support the theory of the barrier requirement and that the design, manufacture and placement was feasible and within the state of the art.

Crown Controls file a motion in limone to preclude Dr. Siegel’s testimony “on the ground that Mr. Siegel’s proposed testimony is not based on “scientific knowledge, ” is not derived by a reliable and accepted “scientific method,” and does not amount to “good science. ” Declarations by McKendall’s counsel listed Dr. Siegel’s qualifications and proposed testimony. The trial court ruled that the offered proof failed the Daubert test in that there was no showing that the opinions of Siegel were based on “sound scientific principles. ” Since Siegel’s testimony would not be permitted, the plaintiff could not meet its burden of proof of the defective design and the motion for summary judgment was granted.

On appeal, the plaintiff relied on Rule 702 which states: If scientific, technical or specialized knowledge will assist a trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise.”

There could be no question that Dr. Siegel had specialized knowledge based on his many years of experience where he had investigated “hundreds of forklift accidents. ” The Court held that his testimony should have been admitted under Federal Rule 702. It was on this basis the summary judgment was reversed and the case remanded.

But what about Daubert? Both the Ninth and Tenth Circuits have ruled that Daubert must be confined to scientific testimony. In Cordoba, 104 F.3d, 230, “Daubert applies only to the admission of scientific testimony….ln order to qualifr as scientific knowledge, an inference or assertion must be derived from the scientific method.” In Thomas v. Newton Intern. Enter. , 42 F. 3d, 1266 (9th Circuit 1994) the Court held that” Daubert was clearly confined to the evaluation of scientific expert testimony.” See also Compton v. Subaru of America, Inc., 82 F3d, 1513.

The Daubert rule was intended to control the junk science that seems so prevalent in today’s courtroom. However, the expert offers specialized knowledge and not unsupported scientific theory, his testimony is permitted and often necessary. In the Compton case, the test engineer was allowed to testify regarding the collapse of a roof of a vehicle based on the special knowledge obtained by examining the allegedly defective product and having read relevant literature.

It appears that field or laboratory testing, professional experience in the area of accident investigation, and knowledge of industry practice are a satisfactory basis to meet the criteria of Federal Rule 702. The Daubert attack on the proponents of junk science is still valid. In this case the Court held that the trial judges in ruling on admissibility of evidence are the “gatekeepers” and should pay particular attention to the reliability of the expert and his or her testimony. To the extent that the Daubert Court was advising the lower courts through its ruling, Daubert applies to all experts; they must be reliable. But as an exclusionary rule, it still only applies to scientific evidence.
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