Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

So you've read Wal-Mart v. Dukes, right?  Then riddle me this, Batman:  Does Daubert apply at the class certification stage?  Or not?

The Dukes opinion -- with less than optimal sentence structure -- "doubted" that Daubert did not apply at the class certification stage of the proceedings.  131 S. Ct. at 2554.  (I guess that means that the majority did not doubt that Daubert DOES apply at the class cert stage, right?)

As has been widely reported, the Eighth Circuit and the Third Circuit have been less than enthusiastic, however, about applying that dictum.  In In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011), the Eighth Circuit nonetheless held that an "exhaustive and conclusive Daubert inquiry before the completion of merits discovery" was inappropriate because of the "inherently preliminary nature of pretrial evidentiary and class certification rulings."  Similarly, the Third Circuit in Behrend v. Comcast Corp., 655 F.3d 182, 204 n.13 (3d Cir. 2011) suggested that the Dukes dictum merely required "a district court to evaluate whether an expert is presenting a model which could evolve to become admissible evidence," and did not require it "to determine if a model is perfect at the certification stage."

Yesterday Law360 reported that just last week, U.S. District Court Judge Christina Snyder of the Central District of California was faced with the question of what kind of scrutiny to give proposed expert testimony at the class certification stage.  Looking at Dukes, Zurn, and Behrend, she concluded that Zurn embodied the proper analysis for expert testimony at the class certification stage.  But having done so, she excluded the plaintiff's expert testimony and denied class certification.  Bruce v. Harley-Davidson Motor Co., No. CV-09-6588 CAS (RZx), Slip op. (C.D. Cal. Jan. 26, 2012).  

In Bruce, plaintiffs sued on behalf of a multistate and a California statewide class under a variety of consumer protection statutes and warranty theories.  They alleged that Harley-Davidson's touring motorcycles have an excessively flexible chassis that allows for severe wobbling and instability at speeds above 55 miles per hour.  Various third parties had created aftermarket stabilizer kits that fixed the problem for an average price of $400 -- but the installation of these third-party kits allegedly voided Harley-Davidson's warranty.

Plaintiffs put forward an expert who opined that the product defect that was common to the entire class was that the motorcycle did not damp out oscillations to one-half of their original amplitude within two seconds across the motorcycle's operational capacity. 

Judge Snyder concluded that the expert's opinion should be evaluated under Zurn's standard.  Discovery in the case had been bifurcated, with so-called "class discovery" occurring first, and merits discovery to occur after class certification had been decided.  As such, Judge Snyder reasoned, the expert's opinions must be assessed in light of the currently available evidence.  If there were gaps in the analysis that could be filled in using merits discovery, the court should not attempt to exclude the testimony at the class certification stage.  Bruce, Slip op. at 9.  

Despite using this standard -- which is clearly more liberal than an ordinary Daubert standard -- the court held that the plaintiff's expert's opinion must be excluded.  The reason was simple:  the gaps in his opinion had nothing to do with unavailable merits discovery.  Rather, they were the result of him simply not having yet done the work to establish the scientific veracity of his core opinion:  "Dr. Limebeer has not adequately explained the scientific basis for his proposed standard, which has not been accepted in the field of motorcycle dynamics."  Id.  Indeed, the court observed that Harley-Davidson itself used a four-second standard, while the authors that plaintiff's expert cited used a 2.78-second standard.  Establishing the reliability of his two-second standard was something that was within the expert's control and did not hinge on the results of any merits discovery.  Accordingly, the court saw no reason to hold off on applying the Daubert criteria.

The court rejected plaintiffs' argument that the expert's opinion had been accepted in state court without objection.  "[T]his fact does not compel the admission of testimony in federal court," the court observed.  Moreover, the court was clearly bothered that the expert's opinion had been formed exclusively for litigation purposes, and had not been published in a peer-reviewed journal.  Id. at 10 (quoting Daubert).

Finally, the court held that an independent basis for excluding the expert's testimony was his failure to test for and eliminate other possible causes of instability.  Slip op. at 11.

Because the plaintiffs' expert testimony was inadmissible, plaintiffs failed to establish that common questions of fact and law predominated over individual inquiries.  Id. at 12 ("plaintiffs have failed to show that they have the ability to use common evidence by which they can demonstrate the defective nature of the Class Vehicles.").  As such, no class could be certified.

Surprisingly, the court both granted the motion to exclude the expert's testimony and denied the plaintiffs' motion for class certification without prejudice.  Ordinarily, plaintiffs get only one opportunity to move for class certification; they are not afforded multiple bites at the apple.  Thus, absence of any explanation for the court's "without prejudice" rulings -- which would seem to allow the plaintiffs to try yet again -- is strange indeed.

Ultimately, however, Bruce is an excellent example of the fact that even where a court uses a "less stringent" (i.e., Zurn) standard for evaluating the admissibility of expert testimony on class certification, expert opinions that fail to establish the basic indicia of scientific reliability should be stricken where that failure cannot be blamed on the unavailability of certain merits discovery.  At the class certification stage, experts are still expected to give a fully-justified opinion based on what is available at that time.

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The Catholic Church instructs us that "[f]alling into vice is as easy as falling off a ladder.  To acquire virtue, however, is more arduous."  Well, so is proving that the ladder you fell off of was defective.

The Seventh Circuit recently issued an opinion applying the principles of Daubert to an expert's testimony that a portable scaffolding that collapsed was defective.  See Bielskis v. Louisville Ladder, Inc., No. 10-1194, Slip op. (7th Cir. Nov. 18, 2011).  Although the opinion isn't groundbreaking, it is a good reminder that a plaintiff cannot prove a defect with just the ipse dixit of an expert.

In Bielskis, the plaintiff -- a carpenter who worked on ceilings -- was injured when his personal mini-scaffolding collapsed when the caster stem broke above one of the wheels.  The plaintiff sued the manufacturer in strict liability for design defect, manufacturing defect failure to warn, and "res ipsa loquitur."  (There is no such thing as "res ipsa" in strict liability, only negligence.  I previously have written in this blog and the National Law Journal about res ipsa's strict liability cousin, "malfunction theory.")

Certainly the defendant had not maintained any control over the 8-year-old scaffolding.  Plaintiff had originally received a fully-assembled mini-scaffold from his employer that he used occasionally for four years.  He then switched jobs, and his new employer typically supplied the scaffolding at jobsites.  In his new job, he only had used his own scaffold one or two times over four years, and that was to haul tools to and from his car.

Plaintiff hired a mechanical engineer as an expert, who concluded that the caster stem had sustained a brittle fracture caused by excess tensile stress brought on by overtightening the stem when the scaffolding had been assembled.  The defendant's expert agreed that there had been a brittle fracture, but, after conducting testing and accident reconstruction, concluded that it was the result of the caster stem being too loose, not too tight.

The trial court excluded the plaintiff's expert testimony and then granted the defendant's motion for summary judgment because plaintiff had no proof of defect.  Plaintiff asked for an opportunity to secure another expert, and the trial court denied the request.

On appeal, the Seventh Circuit held that the trial court had not abused its discretion because the expert had been "'talking off the cuff' -- without data or analysis."  Applying Daubert factors, the court noted that the expert merely examined the scaffold with the naked eye for about an hour.  He "made not attempt to test his hypothesis."  Slip op. at 12.  He did not even measure the caster stem, which he incorrectly believed to be 3/8", and he had no idea what alloy the caster stem was made of.

In contrast, the defense expert had used digital calipers to take various measurements, created replicas of the fractures, and performed stress analysis with the caster in various positions.  Id. at 13.

The plaintiff's expert offered no evidence that there would be any consensus in the engineering community supporting his conclusion that the fracture resulted from overtightening.  He could not cite any error rate for his methodology, as he had merely eyeballed it.

And his testimony about a feasible alternative design was nothing short of ipse dixit:

His original report simply contained the unelaborated conclusion that "[m]eans other than the threaded stud could have been used to hold the roller to the conveyor."  Then at his deposition he suggested that . . . the scaffold could have been supported by a "set screw, a spring, or a snap ring."  When asked if those design alternatives had been tested, [he] stated, "I don't have to test it."  Likewise, he dismissed the question of whether any of his proposed design alternatives were used in the marketplace on scaffolds or had been recommended or required by any industry-wide standards for climbing equipment . . .  Without more, there is no way to assure that Mizen's proposed alternatives are "the product of reliable principles and methods."

Id. at 14 (citations omitted).

The court held that without expert testimony, plaintiff could not get to the jury on the question of defect, as he simply failed to prove that the mini-scaffold was defective at the time it left the manufacturer's control, and he failed to exclude the possibility of alternative causes, such as abnormal use:

Bielskis has not presented any evidence about who assembled the scaffold and whether it was assembled in conformity with the manufacturer's warnings or specifications.  Even [the expert's] testimony, had it not been barred, did not point to a defect at the time the scaffold left the manufacturer.  He stated at his deposition that the failed caster did not have a design or manufacturing defect but rather "an installation defect" that occurred because the caster stem was installed "with excessive stress at the moment of installation."

Id. at 21.

Bielskis is an excellent reminder that it is not enough for an expert to be qualified.  He or she must investigate the issues consistent with accepted methodology and test his or her conclusions, making sure to link each part of the syllogism to recognized scientific principles.

Interestingly, on the same day that the Seventh Circuit issued Bielskis, the Eleventh Circuit issued an unpublished per curiam opinion that also rejected a plaintiff's expert testimony on defect.  See Cannioto v. Louisville Ladder, Inc., No. 11-12885, Slip op. (11th Cir. Nov. 18, 2011).   Clearly, submitting admissible expert proof of a defect in  ladder litigation is not as easy as falling off a ladder.

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It's always nice to do a post that gets back to the basics of product liability law.  And so I bring you Federici v. Ford Motor Co., Nos. 10-2428 and 10-2637, Slip op. (7th Cir. Sept. 19, 2011), in which Chief Judge Frank Easterbrook was faced with the question whether a plaintiff, in proving an automotive design defect case under Illinois's consumer expectations test, was required to introduce expert evidence in support of his claim.

The facts were simple:  plaintiffs' 1993 Ford Explorer was struck near the left rear wheel by a car going 30 miles per hour and rolled over, injuring the plaintiffs.  Plaintiffs filed the suit in state court, but it was removed on diversity grounds and (surprisingly to me) the parties consented to final decision by a magistrate.  At the close of discovery, plaintiffs had no expert on automotive design, so Ford moved for summary judgment, which the magistrate judge granted.

In my book, any case where the plaintiffs' lawyer either can't find or won't spend money on an expert on the design of the product at issue is probably a dog of a case.  From Chief Judge Easterbrook's opinion, however, we cannot determine why plaintiffs had no expert, only that they had none.

Plaintiffs' argument was simple.  Illinois has two tests for proving design defect -- a risk-utility balancing and a consumer expectations test -- and they do not need an expert to tell jurors what consumers expect, as that is within the jurors' experience.

Chief Judge Easterbrook noted that the court was a bit at sea, since the Illinois Supreme Court had not addressed whether a design defect claim on a complex product could survive without expert proof.  Slip op. at 3.  Several intermediate appellate decisions had required expert testimony, however.  Id.

Moreover, there was the question of whether this was an issue of state law or federal law.  The parties (and the magistrate judge below) had assumed that it was a matter of state law, reasoning that the quality of proof was part of the claim's substantive elements.  The Seventh Circuit clearly believed it was an issue of federal law as an evidentiary issue of what proof was essential, reasoning that the consumer-expectation test and the risk-utility test were not separate causes of action, but mere methods of proof of demonstrating strict liability design defect.  Slip op. at 4.  However, the court reserved deciding the issue.  Id. at 7. 

Instead, the court established from the Illinois Supreme Court's decision in Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516 (2008), that the risk-utility test in Illinois incorporates consumer expectations as one element of the risk-utility balancing and, as such, expert evidence is necessary even where a plaintiff relies on consumer expectations to prove design defect.  Slip op. at 6-7.  The court observed:

Did the design decisions that went into the 1993 Ford Explorer even contribute to the rollover?  Causation is a question about physics, and design options are the province of engineers.  Jurors own cars, but people own lots of products without being able to explain (or even understand) the principles behind their construction and operation. . . .  [M]ost people can't explain what makes a bicycle or a toilet work.  Cars are far more complex.

. . . The record doesn't even tell us even why this car rolled over, let alone what cars usually do in particular kinds of collisions--or what design changes could reduce the rollover rate, by how much. . . . [W]hen wheels are perpendicular to the line of travel, a tilt in the direction of travel can put the center of gravity outside the wheelbase and the car will roll over.  Many articles available on the Internet discuss the physics of this process.  Understanding requires some geometry and algebra; jurors' unguided intuitions will not solve the equations.  Without an expert's assistance the decision would depend on speculation, which cannot establish causation--an issue on which plaintiffs bear both the burden of production and the risk of non-persuasion.

Slip op. at 7-9 (citations omitted).

In discussing how federal law would treat the issue, the court noted that "[f]ederal law often requires expert evidence about consumers' knowledge and behavior, because jurors are supposed to decide on the basis of the record rather than their own intuitions and assumptions."  Slip op. at 5.  Thus, experts testify in trademark litigation on what about packaging or messaging confuses consumers.  And in Fair Credit Reporting Act and Fair Debt Collection Act cases, they opine on what is confusing to unsophisticated borrowers.  "Jurors know less about product design than they know about what confuses people who buy toothpaste or borrow $10,000."  Slip op. at 5. 

Moreover, the sample size of federal jury is far too small to reach any reliable conclusions about consumer expectations.  "Many federal civil cases are resolved by six-person juries, and none by more than twelve," the court observed.  "That is too few to reveal what expectations consumers as a whole will have."  Slip op. at 5.

The decision in Federici makes a strong case for why expert evidence is absolutely necessary to meet a plaintiff's burden of proof and burden of persuasion on the issue of design defect in a complex product liability suit -- even in a state that allows proof under the consumer expectations test.

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The Eighth Circuit recently issued a Daubert opinion that provides a good reminder that in toxic tort cases, experts must pay attention to issues of actual exposure and dose before they can have an admissible opinion on "specific" causation (i.e., that the plaintiff's exposure to the chemical caused his injury).

In Barrett v. Rhodia, Inc., No. 09-3115, Slip op. (8th Cir. May 24, 2010), the plaintiff worked for a company that disposed of hazardous waste.  Plaintiff's job was to assist in ash fixation -- making waste materials stable enough to be disposed of in landfills.  Plaintiff worked in a three-story facility with steel grating floors.  One of his co-workers would open a barrel of phosphorus pentasulfide and load it into a chute on the third floor.  Plaintiff's job was to open the door of the chute on the second floor and let the phosphorus pentasulfide flow down to the first floor, where the waste materials awaited treatment.

Phosphorus pentasulfide is a powder that defendant delivered in barrels.  It reacts with water and water vapor, forming toxic hydrogen sulfide gas.  If the dust is enhaled, it interacts with moisture in the lungs to form the gas.  High concentrations of hydrogen sulfide gas (500 to 1,000 ppm) can cause unconsciousness and death.

Because of its known toxicity, OSHA advises that workers who use the chemical wear protective clothing and a self-contained breathing apparatus.  On the date in question, the employee on the third floor wore a breathing apparatus, put plaintiff and his colleagues on the lower floor did not.  The employee on the third floor loaded the chute.  When plaintiff went to open the second-floor chute, he collapsed.  He subsequently was diagnosed with dementia resulting from lack of oxygen to the brain.

Plaintiff's employer hired someone to investigate the incident.  They opened the drums of phosphorus pentasulfide and found hydrogen sulfide gas in the headspace of the drums at a concentration as much as 5,500 ppm. 

Plaintiff sued the defendant chemical supplier, claiming that the drum was defectively designed to allow hydrogen sulfide to build up in the headspace and that defendant failed to warn of the risk of harm from hydrogen sulfide in the headspace of the drum.  Plaintiffs' experts were prepared to testify that it was the act of third floor employee in opening the drum that caused plaintiff to be exposed to enough hydrogen sulfide to pass out and be injured.

Defendant moved to exclude plaintiff's expert testimony under Daubert, arguing that although some of the experts might be qualified to testify to general causation -- i.e., that hydrogen sulfide can cause the type of injury that plaintiff has -- none were able to testify to specific causation with the requisite degree of scientific reliability because they did not establish that plaintiff was exposed to hydrogen sulfide from the drum's headspace and, if so, in what dose.  In fact, the defendant hired its own expert who conducted drum opening experiments in the employer's facility, including gas dispersion calculations to determine how much hydrogen sulfide gas a person standing twelve to fourteen feet below the drum (on the second floor) would receive.  Defendant's expert concluded that the plaintiff could not have been exposed to a sufficient concentration of hydrogen sulfide gas to cause plaintiff's reaction.  The defendant's expert concluded that the more likely explanation was that plaintiff -- who wore no breathing apparatus -- inhaled phosphorus pentasulfide dust when he tried to open the chute.  This, of course, was a danger that was amply warned about.

Plaintiff's primary expert was an experienced allergist who was board certified in toxicology.  She had never treated anyone with exposure to hydrogen sulfide gas.  And she "conceded that she did not know how hydrogen sulfide disperses, the distance between [plaintiff] and the . . . drum alleged to be the source of the gas, or the concentration of hydrogen sulfide gas, if any, in the drum."  Slip. op. at 8.  She also testified that she did not rule out other potential causes of plaintiff's injury -- such as the inhalation of phosphorus pentasulfide dust -- prior to forming her causation opinion, which she admitted was "based on assumption, without any scientific testing or analysis."  Slip op. at 8-9.

The court stressed that "[t]he plaintiff in a toxic tort strict liability case needs to establish causation through expert testimony," which in this case meant both general causation and "that [plaintiff] was exposed to hydrogen sulfide gas which dispersed from the . . . drum manufactured by [defendant] in sufficient concentration to cause his injuries."  Slip op. at 7.  Without admissible expert testimony on this point, plaintiff failed to establish a prima facie case.

The court affirmed the trial court's grant of summary judgment for the defendant based on plaintiff's failure to offer admissible expert testimony on specific causation:

[Plaintiff's experts] had presented insufficient evidence, and no expert evidence, on specific causation.  They had not shown that hydrogen sulfide gas released from [defendant's] drum was the source of [plaintiff's] injuries.  The [district] court also noted that appellants had offered no evidence to refute [defendant's] expert, who had testified in his deposition on the basis of chemical analysis and modeling that [plaintiff] had actually inhaled [phosphorus pentasulfide] dust as a result of not wearing any protective equipment.

Slip op. at 13. 

Plaintiffs tried to rely on temporal relationships and the employer's investigator's finding of gas in the drums to get to a jury on the question of specific causation.  But the Eighth Circuit said no; expert proof on dose and exposure is required in toxic tort cases:  "Although a mathematically precise quantification of exposure level is not required, [plaintiff and his employer] were required to present expert evidence that [plaintiff] was exposed to toxic levels of hydrogen sulfide gas, as opposed to [phosphorus pentasulfide] dust."  Slip op. at 14.

Barrett is a strong reminder that experts must do their homework on the basic questions of exposure and dose, and work to eliminate potential alternative causes, in order to have admissible testimony that meets a plaintiff's prima facie burden of proof in a toxic tort case.

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The court handling Delaware's Seroquel cases recently issued a thoughtful opinion analyzing the admissibility of medical causation testimony.  See Hopkins v. AstraZeneca Pharmaceuticals, LP, 2010 WL 1267219 (Del. Super. -- New Castle Co. Mar. 31, 2010).

In Hopkins, plaintiff was a morbidly obese woman whose family history and medical condition put her at a substantially increased risk of developing Type II diabetes.  She began taking Seroquel as a sleep aid in January 2003, and stopped after less than two years, when she was diagnosed with Type II diabetes.  Plaintiff sued Seroquel's manufacturer, alleging that the medicine caused her to develop diabetes.  The defendant moved for summary judgment, arguing that plaintiff had no credible proof of specific causation.

In response, plaintiff proffered the testimony of Dr. Loren W. Greene, a Clinical Associate Professor of Medicine at NYU School of Medicine who is board certified in Internal Medicine as well as Endocrinology and Metabolism.  Id. at *3.  The defendant did not challenge Dr. Greene's qualifications.

It did, however, challenge her methodology.  The defendant argued that Dr. Greene could not give an opinion to a reasonable degree of medical certainty as to how Seroquel causes diabetes, and she could not isolate Seroquel from the other potential causes.  Her opinion, at its core, was a temporal association:  because plaintiff had not developed Type II diabetes before, it must be that she developed diabetes shortly after taking Seroquel because of the Seroquel.  Id. at *5-*6.  And yet Dr. Greene could not rule out chronic morbid obesity as the sole cause of plaintiff's diabetes.  Id. at *6.

Delaware follows Daubert and has adopted an identical version of Rule 702 requiring expert testimony to be based on sufficient data, reliable principles, and the reliable application of those principles to the facts of the case.  The court ultimately held that Dr. Greene's testimony was inadmissible because she:  (1) failed to adequately explain her methodology, (2) placed too much emphasis on the temporal relationship, (3) failed to rule out other likely causes, and (4) failed to explain how she incorporated data from epidemiological studies and clinical studies into her analysis.

Because Dr. Greene's specific causation testimony was inadmissible, the court granted the defendant's motion for summary judgment against plaintiff.

The opinion in Hopkins is an example of a very workmanlike approach to the admissibility of scientific expert testimony.  It takes the court's gatekeeping function seriously, while not erecting impossible burdens for the expert to overcome.  Clearly, the court was influenced by the fact that much of the expert's deposition was spent answering "I don't recall" to questions about studies forming the basic underlying theory of general causation.

One often wonders what the subsequent impact is of judicial opinions rejecting expert testimony for failure to follow the scientific method.  For example, does any sort of review board take up the issue of a medical professor's methodology when it has been rejected by a court of law?  To the extent a treating physician and professor has, in paid testimony, reached a conclusion on specific causation without excluding other likely causes of the condition, should that have any relevance beyond the litigation context?

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